Special Notice / Hearing: None__
Vote Required: Majority
To: Honorable Board of Supervisors
From: Steve Monowitz, Community Development Director
Subject: Adoption of an ordinance to amend the County’s Subdivision Regulations to: (1) incorporate State Subdivision Map Act changes; (2) better implement the County’s General Plan and Local Coastal Program; (3) integrate new subdivision types and best practices; and (4) clarify, augment, and streamline the regulations as well as the application and review process; and adoption of a resolution directing staff to submit the adopted Subdivision Regulations to the California Coastal Commission for certification as part of the implementation program for the County’s Local Coastal Program.
RECOMMENDATION:
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Recommendation regarding County’s Subdivision Regulations:
A) Adopt an ordinance amending Part Two of Division VI of the San Mateo County Ordinance Code (Subdivision Regulations) of the San Mateo County Ordinance Code, (Attachment A), by making the required findings in Attachment B, previously introduced on December 5, 2017, and waive the reading of the ordinance in its entirety; and
B) Adoption of a resolution directing staff to submit the adopted Subdivision Regulations to the California Coastal Commission for certification as part of the implementation program for the County’s Local Coastal Program.
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BACKGROUND:
Proposal: The proposed project consists of comprehensive amendments to the County’s Subdivision Regulations (“Regulations”), Part Two of Division VI of the San Mateo County Ordinance Code (Attachment A) and associated environmental review. The proposed amendments incorporate the current requirements of the State Subdivision Map Act and recent case law, and advance implementation of the County’s General Plan and zoning by modifying certain process and content requirements for subdivision applications, and integrating current application review practices into the Regulations.
Planning Commission Action: The Planning Commission recommended that the Board of Supervisors adopt an ordinance amending Part Two of Division VI of the County Ordinance Code (Subdivision Regulations), and recommended that the Board of Supervisors adopt the Initial Study and Negative Declaration, all by making the findings in Attachments B and D.
Report Prepared By: Joseph LaClair, Planning Manager
Location: Unincorporated San Mateo County
Environmental Evaluation: Initial Study and Negative Declaration
Chronology:
Date Action
September 27, 2017 - Planning Commission Public Workshop
November 8, 2017 - Planning Commission Public Hearing and Vote
December 5, 2017 - Board of Supervisors First Reading
December 12, 2017 - Board of Supervisors Second Reading
DISCUSSION:
A. KEY ISSUES
The County’s Subdivision Regulations were first adopted by the County in 1945 and have been amended several times over the years. The last comprehensive update was adopted in 1992. The County’s authority to regulate subdivisions derives from its police powers and the Subdivision Map Act (Cal. Government Code Sections 66410 et seq.).
Early in 2016, staff, in collaboration with County Counsel, initiated a comprehensive update to the Regulations with the goal of aligning the regulations with current state law and best practices to advance implementation of General Plan (GP) and community plan policies, including the County’s Local Coastal Program (LCP). The update project has been guided by a collaborative stakeholder outreach effort. This update is necessary and timely, and staff’s process provided an opportunity to improve both the content and utility of the regulations by modifying or adding provisions, creating a process for determining the development potential of newly proposed parcels, and addressing new types of subdivisions. The project will amend the County Ordinance Code and require an amendment to the LCP, but it will not alter any adopted land use plans, zoning, or development-related policies.
1. Progress to Date
To initiate the project, staff prepared a detailed work plan with the following tasks: identification of and consultation with internal and external stakeholders; review of state legislation and case law; evaluation of the current regulations; research (including GIS analyses); regulations drafting and review; California Environmental Quality Act (CEQA) review; and formal adoption.
Outreach to external stakeholders and consultation with internal stakeholders began in March, 2016. Review and incorporation of California Subdivision Map Act (Map Act) amendments began a month later and continued to May 2017.
The outreach effort has been robust. Staff has presented the Regulations update to the Agricultural Advisory Commission, Pescadero Municipal Advisory Council, Midcoast Community Council, and North Fair Oaks Community Council in 2016 and again in 2017, incorporating comments received after both rounds of public meetings. Staff has met informally with representatives of Peninsula Open Space Trust, Midpeninsula Regional Open Space District, Committee for Green Foothills, local chapters of the Sierra Club and Audubon Society, various fire districts within the County, and subdivision practitioners including surveyors, engineers, and architects. In addition, staff has informed and invited comments from the water and sanitation districts and all homeowner associations operating within the unincorporated parts of the County, all school districts and municipalities in the County, and other development interests including the California Building Industry Association of the Bay Area and the San Mateo County Association of Realtors. Lastly, staff has created and maintained documentation of this update project on the Planning and Building Department’s “major projects” web page.
On July 13, 2016, staff briefed the Planning Commission on the project scope and detailed work plan and provided a summary of the comments staff received from external and internal stakeholders, the advisory councils, and the Agricultural Advisory Committee regarding issues that should be addressed during the update project. The Planning Commission encouraged the staff to continue working with stakeholders to address the issues they raised in developing proposed amendments for the update.
Following the July 2016 presentation to the Planning Commission, staff evaluated the current Regulations, continued to incorporate new text from the Map Act into the Regulations, examined and resolved the previously identified issues, and developed provisions for a “development footprint” analysis tool to balance development allowed by the zoning on property with natural resource protection and hazard avoidance on all lots within newly proposed subdivisions.
In October 2016, Planning staff began a series of regular meetings with County Counsel and other County staff to discuss and resolve stakeholder issues, verify needed Map Act-based changes, and draft and revise the Regulations text. These meetings also generated discussion of refinements to definitions, application submittal requirements, and review procedures; and produced additional staff-proposed text amendments.
Throughout the course of the update, Planning staff has consulted with other County Departments, including County Counsel, Department of Public Works, Fire Protection Services, and Environmental Health Division, on an ongoing basis to ensure thorough understanding of all issues and their proper resolution in the updated Regulations.
Overview of Proposed Amendments
The recommended amendments to the Regulations are based upon changes made to the Map Act and other changes proposed by County staff. All changes may be categorized as either content, process, or minor textual changes. Content changes are new or revised definitions, policies, standards, or requirements for land division and related activities. Process changes address the responsibilities of applicants and the County and the procedures to be followed by the County, applicants, and others involved in the subdivision review process. Examples of minor textual changes are replacement of “Planning Director” with “Community Development Director” and spelling of all numbers followed by numerals in parentheses throughout the document. All the content, process, and minor textual changes ultimately adopted will be included in updated entries on the Planning and Building Department’s web page, as well as in new and/or revised handouts for public use. The proposed content, process, or minor textual changes amendments are also categorized as staff-proposed changes (shown in bold italics), or changes to comply with the Map Act (shown as italics text highlighted in gray) content, process, or minor textual changes.
Updates from the State Map Act
The Map Act is amended regularly by the State legislature. Amendments range from a change in a word, phrase, or date to the addition of new provisions. Staff cataloged the amendments made since 1992 and identified over 100; of those, about 40 were deemed substantive (meaning a change in submittal requirements, review procedures or timeframes, or scope of County authority or responsibility) and have been incorporated into the draft Regulations (shown as italics text highlighted in gray). These recommended amendments are also listed sequentially by Regulations chapter, article, and section heading numbers (see Table 1 below). Some of the textual changes have been inserted verbatim from the Map Act, while others have been paraphrased to mesh with the existing text of the Regulations, or to summarize lengthy unclear Map Act provisions.
The more significant changes include:
• Modification of existing provisions for preparing and reviewing subdivision maps.
• Statements required on final maps.
• Extending expiration dates of approved tentative maps.
• Performing lot mergers.
• New provisions for environmental subdivisions.
• Noticing requirements for converting mobile home parks to occupant ownership.
• Procedures for transmitting subdivision applications to other agencies for review.
Staff Recommended Updates
Staff proposed amendments (shown as bold italics text) constitute the second primary source of Regulation updates. Some are intended to better implement the current policies related to land development, resource conservation, and hazard avoidance contained in the County’s General Plan and Local Coastal Program, and are primarily associated with the “development footprint” concept. Other proposed amendments provide much needed clarification to the existing Certificate of Compliance provisions, add and/or revise defined terms, align application requirements with current County practices, clarify the provisions regarding remainder parcels, and broaden the exception provisions.
2. Staff Recommended Amendments by Subdivision Regulations Chapter
Chapter 1 - General Provisions
(Section 7006) Staff recommends deleting this provision that limits the time for actions against the County and instead deferring to the full range of actions and timelines in current state law.
(Section 7008) Staff recommends adding the following definitions: “arm’s length transaction”, “developable area”, “double frontage lot”, “environmental subdivision”, “flag lot”, “omitted parcel”, “parent parcel”, and “single-family dwelling”. Staff recommends modifying the following definitions: “legal parcel”, “lot”, “lot line adjustment”, “parcel”, “remainder parcel”, and “second dwelling unit”, among others.
Chapter 2 - Subdivision Requirements
(Section 7010) Staff recommends the creation of a “development footprint” tool as a new first step in the subdivision application process. Detailed mapped and narrative information would become mandatory submittal requirements for use in consultation with County staff on a preliminary subdivision layout prior to submittal of a formal application. The goal is to resolve environmental and infrastructure issues early in the process and minimize the use of conditions of map approval (some of which must await enforcement until the building permit stage, and often by someone other than the subdivider). Examples of the considerations subject to review are existing conditions such as preservation or removal of trees or vegetation, wildlife habitat protection, avoidance of hazards such as steep/unstable slopes, fault traces, fire and flood prone areas, as well as potential locations for improvements such as utility corridors, driveways, and buildings.
The Development Footprint Analysis is a key addition to the proposed update of the County’s Subdivision Regulations. It is intended to improve implementation of the County General Plan by requiring a comprehensive evaluation of the development constraints of a site and the potential impacts of subdivision and development of the resulting lots. Applicants would, in consultation with County staff, conduct and submit the analysis prior to formal submittal of a tentative map. Therefore, the analysis itself is not a type of development approval, but would be available for informational purposes during Planning Commission and public review of a tentative map application.
The required analysis will be portrayed on a set of four maps, accompanied by supporting documentation as necessary in each case. The four required maps are: Context Map, Site Analysis Map, Non-Development Area Map, and Preliminary Subdivision Layout. The Context Map is a vicinity map of the subject site, including the parcels and roadways immediately surrounding it. The Site Analysis Map depicts the subject site, including the edges of all adjoining parcels and roadways, as well as all existing site conditions. Site conditions are physical features on and around the site and include topography, geology and soils, hydrology, fault zones, flood plains, vegetation and wildlife, scenic amenities, cultural artifacts, existing improvements, vehicular access, potential for energy conservation, adopted noise contours, and other data as may be required. The Non-Development Area Map shows cultural and natural resources and hazards on the site as shown on the Site Analysis Map that should be protected from development as resources or excluded from development as hazards. The Preliminary Subdivision Layout utilizes the Non-Development Area Map as the basis for laying out new lot lines, roadways, and other map features that result in footprints of allowable future development and accessways which avoid or minimize intrusion into resource protection areas and hazard avoidance areas.
To illustrate how the Development Footprint Analysis would be implemented, staff created five example parcel types to serve as parent parcels for hypothetical subdivisions. These hypothetical parcels represent the more likely types of lands and locations for which there is future subdivision potential within the County. All parcel sizes and configurations, physical features, and lot layouts are hypothetical and were created to best demonstrate how the development footprint concept would be implemented. In practice, the amount of data and level of detail associated with the development footprint analysis for a particular subdivision would vary with the size and complexity of the subject site, the characteristics of the parcel, and the number of lots proposed. The examples can be viewed on the Planning and Building website at: <http://planning.smcgov.org/sites/planning.smcgov.org/files/press-release/files/Subdivision-Regs-Update-PC-workshop_9-27-17.pdf>
(Section 7011) Staff recommends updating the application requirements for tentative maps for consistency with current Departmental policies and practices.
Chapter 3 - Design and Improvement Requirements
(Section 7020) Staff recommends numerous modifications to the regulations for minimum lot size, determination of lot frontage, width of corner lots, and the design of flag lots.
(Section 7022) Staff recommends increasing certain minimum roadway widths from 16 to 20 feet with the ability to grant exceptions as warranted.
(Section 7034) Staff recommends new requirements for remainder parcels, including that they must be accessible from an existing roadway, be serviceable by utilities, and be buildable under the standards of their existing zoning.
Chapter 4 - Exactions
(Sections 7043 and 7047) Staff recommends deletion of existing acreage and dwelling unit minimum thresholds for requiring new transit facilities and bikeways.
(Section 7057) The Map Act has added new provisions regulating the use of park and recreation fees.
(Section 7060) Staff recommends modifying existing provisions for ocean front access to require the access to be safe from flooding and erosion over the life of the project, and that an in-lieu fee become payable if the access offer is not accepted.
Chapter 5 - Exceptions
(Section 7095) Staff recommends expanding the exception provisions.
(Section 7096) Staff recommends adding a required finding for granting exceptions.
Chapter 6 - Vesting Tentative Maps
Minor textual changes only.
Chapter 7 - Conversion to Condominiums
(Section 7109) Staff recommends that mobile home parks be excluded from the existing County prohibition on the filing of condominium conversion maps.
Chapter 8 - Reversions to Acreage
Minor textual changes only.
Chapter 9 - Parcel Mergers
(Section 7118) Staff recommends adding that the applicant has obtained a Certificate of Compliance for the affected parcels as a criterion for when contiguous parcels held by the same owner may be merged.
Chapter 10 - Lot Line Adjustments
(Section 7126) Staff recommends adding a lot line adjustment review criterion requiring that impacts on scenic, wetland, or coastal areas be minimal.
Chapter 11 - Enforcement and Remedies
(Section 7132) Staff recommends deleting specific fines or other penalties and instead deferring to current state law.
(Section 7133) Staff recommends clarifying that compliance with conditions placed on a Certificate of Compliance need not occur until a development permit is issued.
(Section 7134) Staff recommends revising the provisions for how the legal status of existing parcels is determined or, if not legal, how they might be made legal. Clarifications include review criteria specific to a variety of parcel scenarios, such as previously developed, lot line-adjusted, part of an approved subdivision map, previously merged, and merging a vacant parcel with a developed parcel. As a result, the process and rationale for legalizing a parcel would be correctly based upon its ownership history and circumstances, while future development plans, if any, would not be a valid consideration in that determination. Certificate of Compliance applicants may rightfully seek parcel legalization as an action independent of any development approvals they might also pursue on the same property.
3. Neighborhood Council Comments
Staff presented the draft update of the Regulations to the Agricultural Advisory Committee, Midcoast Community Council, Pescadero Municipal Advisory Council, and North Fair Oaks Community Council in August of this year. A total of about 50 comments were recorded, approximately half of which have a direct bearing on the revised Regulations, and these may be grouped as follows: development footprint (10), definitions (3), remainder parcels (3), Certificates of Compliance (2), standards (2), and miscellaneous (5). A synopsis of and/or brief response to each group of the comments is as follows.
Development Footprint
Lot lines within a newly proposed subdivision may be drawn to avoid identified non-development areas, or one or more lots may include such areas within their boundaries. Prime soils and other agricultural lands are a protected resource and a PAD-zoned parcel example has been created to demonstrate this. However, all agricultural subdivisions are required to prepare a master land division plan, which addresses the analyses required in the proposed development footprint analysis, therefore, PAD-zoned lands will not be required to prepare development footprint analysis. Subdivision applicants will be responsible for submitting the required site analysis, the scope of which will vary according to the size and existing conditions on each parent parcel. The “early assistance” meeting is intended as a technical meeting between staff and the applicant; not as an opportunity for public input.
Definitions
The use of “single-family attached” will be changed to “owner-occupied attached” to better describe the townhome and condominium type of units for which no minimum lot size is proposed. Environmental subdivisions are a new type created by the Legislature for the preservation of sensitive habitat.
Remainder Parcels
All remainder parcels are required to retain a density credit. Even if not shown on a subdivision map, as in the case of an “omitted parcel”, all remainder parcels will receive a new APN upon recordation to facilitate ongoing recordkeeping of all discrete parcels. The added requirement for meeting the test of an “arm’s length transaction” on the sale of adjoining parcels further reduces the opportunity to engage in “four-by-four” subdivisions, e.g., the sequential filing of multiple minor subdivisions to avoid filing one major subdivision on the original parent parcel in violation of existing County policy and the Map Act.
Certificates of Compliance
Certificates of Compliance Type Bs are, by law, ministerial actions to legalize non-compliant parcels; not a tool to forestall or reduce potential development.
Standards
The increase in the minimum width of all roads to 20 feet is based primarily on the need to ensure adequate access for fire and other emergency vehicles. However, since some locales or environmental settings may not be able to accommodate or may be negatively impacted by wider roads, the exception provisions have been broadened to apply to all subdivision design and improvement standards, including roadway width.
Therefore, where special circumstances exist, such as difficult terrain, especially long roadway length, or very low traffic volumes, a lesser standard, possibly in combination with alternative design features such as turnouts, can be approved with no appreciable decrease in public safety. The Department of Public Works roadway standards will be used to design roads in all subdivisions where Board-adopted standards exist. In the absence of such standards, the standards in Section 7022, Table 3.1, will be used.
Miscellaneous
The revised Regulations will not change how density credits are calculated, and will not add or remove restrictions to land development; the legal basis for both matters lies in the Zoning Regulations. Section 7006 is proposed for deletion in favor of deferring to the full range of current state law on the matter of legal recourse available to anyone wishing to oppose a County action on a subdivision.
A number of comments were received at, and subsequent to the September 27, 2017 Planning Commission workshop meeting, and are summarized as follows:
1. September 26, 2017 Letter from Kerry Burke
a. Questions/comments regarding proposed new/revised definitions.
b. Questions/comments regarding proposed development footprint provisions.
c. Questions/comments regarding street design standards.
d. Questions/comments regarding remainder/omitted parcels.
e. Questions/comments regarding Certificates of Compliance.
2. September 27, 2017 Public Testimony from Kerry Burke
a. Suggestion to hold technical workshop on updated Regulations.
3. September 27, 2017 Planning Commission Comments
a. Numerous technical corrections/clarifications to proposed Regulations text.
b. Suggestion to clarify use of different font styles and certain terminology throughout Regulations draft.
c. Consensus for staff to schedule informal meetings with individual commissioners upon request.
4. October 5, 2017 Surveyors and Engineers Workshop: Meeting with a Representative of the American Council of Consulting Engineers
a. Staff contacted over a dozen engineers and surveyors to attend; Roland Haga, representing the local membership of the American Council of Engineering Companies, attended.
b. Attendee expressed general support for the development footprint analysis requirements in the revised Regulations.
c. Suggested that staff provide flexibility on submittal requirements for smaller, simpler projects.
5. October 17, 2017 Letter from the Committee for Green Foothills
a. Suggestion to insert already defined term “sensitive habitats” in several places in the development footprint analysis provisions.
b. Request to delete applicant’s ability to possibly relocate, replace, or replicate a site resource proposed for alteration at or removal from its original location during development footprint analysis review.
c. Request to remove current and proposed, expanded exceptions provisions regarding subdivision design requirements, because environmentally sensitive or hazardous areas would be better protected or avoided.
6. One-on-One Meetings with Planning Commissioners
a. Minor text changes to Chapters 2 and 3 to improve clarity and readability.
7. Interdepartmental Meeting with the Department of Public Works
a. The Department of Public Works (DPW) raised concerns at the Commission Workshop about proposed road standards that appeared to be different than DPW road standards that were adopted by the Board of Supervisors.
8. Feedback from Fire Agencies
a. The County Fire Marshall, and several fire agencies that provide fire services within the unincorporated County, requested that the proposed regulations be revised to better reflect state law requirements regarding fire safety and defensible space, to incorporate provisions ensuring fire hazards will be rigorously assessed as part of the development footprint analysis process, and clarifying the consultation procedures between County staff and fire agencies during the subdivision review process. Several changes were made to throughout the proposed Regulations that address these comments.
Staff has revised the proposed Regulations (Attachment A) to incorporate the above comments.
• Revised the proposed development footprint analysis provisions to include “sensitive habitats” and to delete provisions allowing possible relocation, replacement, or replication of site resources proposed for alteration at or removal from its original location as part of a proposed subdivision.
• The existing exception provisions and the proposed expansion thereof have been retained as necessary to accommodate the physically difficult sites that are typical of the remaining vacant or underdeveloped parcels.
• Roadway width requirements in Section 7022 were revised in response to comments from DPW to defer to Board-adopted DPW standards, and in the absence of those, use the standards in Section 7022, Table 3.1, while still allowing the Community Development Director discretion to work with other Departments and the applicant to allow less environmentally damaging road widths that still maintain public health and safety.
• Minor clarifications and updates of provisions controlling the format of map submittal requirements were made in response to DPW comments.
B. ALTERNATIVES
The Board of Supervisors could not adopt the proposed changes to the Subdivision Regulations and direct staff to prepare alternative changes.
C. ENVIRONMENTAL REVIEW
The Board Certified the Initial Study and Negative Declaration for CEQA compliance on December 5, 2017.
D. REVIEWING AGENCIES
County Counsel
County Counsel has reviewed the proposed Ordinance as to form.
Approval of this project contributes to the Shared Vision 2025 of a Livable Community by facilitating growth near transit and promoting affordable, livable, and connected communities. Approval of this project contributes to the Shared Vision 2025 of an Environmentally Conscious Community by preserving our natural resources through stewardship when land is subdivided.
FISCAL IMPACT
None.
ATTACHMENTS
A. Proposed Subdivision Regulations
B. Enacting Ordinance and Resolution Adopting the Proposed Negative Declaration
C. Resolution Directing Staff to Submit Proposed Changes to the Coastal Commission