San Rafael lifts partial ban on in-law apartments

An updated ordinance on in-law apartment approvals in San Rafael does not include a ban for hillside neighborhoods despite concerns about fire safety and emergency access.

The San Rafael City Council voted unanimously Monday to approve rules for “accessory dwelling units” — also known as ADUs or in-law apartments — to realign the city with state laws. The rules also apply to junior accessory dwelling units, or JADUs.

In October, the council approved a 45-day urgency moratorium on approvals in some hillside neighborhoods to allow staff time to study whether the city had authority to regulate parking and prohibit ADUs in those areas. The rationale for the ban was that narrow roads on the hillside communities limited access for fire engines and other large emergency vehicles.

“We believe there are ways to offset the safety concerns without prohibiting all ADUs,” said Assistant City Attorney Nira Doherty.

Doherty said local cities and towns are not allowed to impose any standards or prohibitions on a subcategory of ADUs that includes those that are 800 square feet or less; a single internal conversion ADU; a JADU; or ADUs within multifamily dwellings. Most applications the city receives fall into this category, she said.

“We cannot prohibit those categories of ADUs even if there’s public safety concerns, even if there’s traffic concerns and even if there’s inadequate water supply,” Doherty said.

Over the years, state legislators have passed a raft of laws to stimulate housing creation by curbing limitations set by local governments. An update to ADU laws in January makes it easier for applicants to win approval for their projects.

However, while surveying San Rafael neighborhoods for fire safety and emergency access, fire officials identified several residential streets where parked cars posed problems.

As an example, fire Chief Darin White cited an incident on Fremont Road in 2016 when firefighters could not navigate their vehicles to the end of the road. Firefighters had to park and carry equipment in, he said.

The moratorium applied to about 40 residential roads. They included Chula Vista Drive in the San Rafael Hill area; Eucalyptus Lane in the Montecito/Happy Valley area; Roger Drive in the Dominican neighborhood; Bayo Vista Way in Sun Valley; and many others in the West End, Gerstle Park, Bret Harte and Picnic Valley neighborhoods.

White and city staff agreed that newly painted parking boxes on some of these streets will help keep a clear passage for fire engines and other emergency vehicles in the event of an emergency.

Some residents were not convinced.

“A parking box is not going to solve that problem,” resident Victoria DeWitt said.

Resident Susan Bradford said in general she is in favor of ADUs, but only when they’re situated “in safe areas where there is adequate parking and fire truck access.”

“It’s dangerous to put more people and property in these kind of areas,” she said.

Councilmember Rachel Kertz called the issue of ADUs a red herring. The real problem is the nonconforming streets, not the ADUs, she said.

“It’s providing an opportunity for housing that we need to have,” Kertz said of the ADUs.

Councilmember Eli Hill said he plans to reach out to legislators to see if some of the language in the ordinance could be cleaned up to address the safety concerns.

“I do support the ADU legislation on balance,” he said. “But I do think it does not allow us the level of flexibility that I think is important to examine in certain scenarios that I think we could apply more objective standards.”

The city’s ordinance will be sent to the California Department of Housing and Community Development for review.

Doherty said department does not actually approve the ordinance, but reviews it for inconsistencies. That gives the city the opportunity to amend its ordinance or argue why it is in line with state law.

The staff report and ordinance are online at bit.ly/3DC3i3Y.