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The Planning Commission held a public hearing on September 8, 2022, and deliberated extensively to consider a request for a Use Permit to legalize the permitting of two small residences constructed without permits on agriculturally-zoned property. The property already had two residences, the maximum allowed under the Zoning Regulations, and the additional residences required a Minor Use Permit. Details of the project can be reviewed in the September 8th Planning Commission staff report, which is included as Attachment F and summarized below. After two failed motions, the Planning Commission approved a Use Permit with a 4-1-0 vote. (Attachment G includes the Planning Commission Minutes). The approval would allow the applicant to complete the permitting process for one of the two un-permitted residences and would require demolition of the other.
On September 23, 2022, the Law Office of Andrew Vento Gabriel, on behalf of the Campbells (project proponent), filed a timely appeal of the Planning Commission's decision to the Board of Supervisors (see Attachment A). In accordance with County Code Section 8-2.225, a timely filing of a notice of appeal nullifies the decision of the Planning Commission, whose decision shall serve as a recommendation to the Board.
Staff has carefully reviewed the issues raised in the appeal and has determined that the arguments identified in the appeal do not warrant approval of both un-permitted residences, for the reasons set forth below. Staff recommends that the Board of Supervisors approve the Planning Commission's decision to issue the Use Permit to legalize the permitting for one of the two illegally constructed dwellings and either (1) require the demolition of the other dwelling (as recommended by the Planning Commission) or (2) allow the second unit to remain as a permitted but non-residential structure.
BACKGROUND
The subject property is located approximately 0.8 mile southwest of the City of Winters, south of State Route 128, at 30633 The Horseshoe, in an area designated for agricultural uses and zoned A-N (Agricultural Intensive). The property is approximately 22 acres in size with 20 acres planted in walnuts and includes one primary home (built in 1920) of approximately 1,660 square feet (SF), one ancillary dwelling approximately 1,155 SF, and a 2,400 SF agricultural exempt structure used for equipment storage built in 2019.
The two un-permitted dwelling units at issue on this appeal (approximately 781 SF and 820 SF) were constructed immediately adjacent (but not attached) to the ag exempt storage structure and are within the development footprint of the ancillary residence (see Attachment B). An un-permitted septic system was also installed to serve the dwellings. According to the Applicant, the two additional dwelling units were constructed so the Campbells' adult children could remain on the family property. The entire residential footprint on the property appears to occupy slightly less than two acres.
Residential uses are allowed in the A-N Zone, under proper permitting, and the County Code provides that a property on A-N zoned land can have up to two residences within a 2.5-acre home site [County Code Sections 8-2.304/Table 8-2.304(e) and 8-2.402(b)]. This allowance assumes one primary home (single-family or duplex) of unrestricted size and one ancillary (second) home up to 2,500 square feet. Additional homes in the A-N Zone require the issuance of a Minor Use Permit [Table 8-2.304(e) and Section 8-2.402(c)].
In early 2021, a County Building Inspector conducted an electrical permit inspection at the Campbell property where the un-permitted dwellings and septic system were discovered. In an attempt to achieve compliance, County staff began working with the Campbells to discuss options for obtaining the necessary approvals.
In March 2021, the Campbells submitted a building permit application for an as-built 'duplex with garage' as a show of good faith to bring the dwellings and ag exempt structure into compliance with residential building standards. At that time, it was thought it might be possible to combine the small units with the neighboring ag exempt structure to form an approximately 4,101 SF 'duplex' structure to meet zoning requirements. However, during the Planning Division's review of the building permit application, it was discovered there were already two dwellings on the property and a Minor Use Permit would be required to satisfy Zoning Regulations [County Code Sections 8-2.304/Table 8-2.304(e) and 8-2.404(c)].
In June 2021, the Campbells submitted an application for a Minor Use Permit requesting that the units be allowed to remain as a 'duplex' in conjunction with the ag exempt structure, and that the building and septic system permit reviews were put on hold pending zoning compliance. Planning staff has determined that the dwelling units and ag exempt structure cannot be combined to meet the definition of a "duplex" for the purposes of zoning compliance because they do not share a common roof, as required by County Code Section 8-2.507. Instead, the project has been reviewed as a Use Permit for the addition of two separate dwelling units.
Though the Campbells were attempting to achieve compliance, they continued to make improvements to the structures without inspections, permits, or payment of fees, including installation of fire sprinklers that are required for residential structures and garages attached or in close proximity to dwellings. As such, Planning staff received numerous comments from residents of The Horseshoe and interested parties expressing concern over the project, including the manner in which the Applicants conducted their business, which are summarized in the Planning Commission staff report (Attachment F). Due to the significant level of public interest, the Zoning Administrator referred the Minor Use Permit to the Planning Commission for decision [County Code Section 8-2.206(e)].
STAFF SUMMARY
The request to add a third home on agriculturally-zoned property is fairly common. When considering such requests through the discretionary review process, Planning staff is mindful of General Plan policies that seek to manage growth to preserve and enhance the County's agricultural and rural setting.
Land Use Policy LU-3.8 states:
The intent of allowing residences in the agricultural areas is to provide dwellings for those directly involved in onsite farming activity, including farm employees, the landowners and their immediate families. All such dwellings shall be encouraged to locate on lands least suited for agricultural use and/or in "clustered" configurations to minimize the conversion of agricultural lands to any other uses. Agriculture Policy AG-1.7 also encourages farm dwellings to be located in a manner that protects both on- and offsite agricultural practices. The County's Zoning Regulations require that additional homes, beyond those allowed by right, must be appurtenant to and compatible with the principal use of the property.
According to the Applicant, the subject dwellings will serve to house immediate family members who assist with daily onsite agricultural operations. Although the construction of additional living quarters within proximity to the existing ancillary dwelling appears to meet General Plan policies that encourage residences in clustered configurations by providing a means for family members to continue living and working on the property, the project would double the number of homes currently allowed on the property.
As addressed in the Planning Commission staff report, Planning staff express concern that the Campbells have demonstrated disregard for the permitting process by ignoring local requirements, even though the Applicant (Ryan Campbell) is professed to be a General Contractor. And, although the appeal claims the constructed units 'are generally code compliant', without proper review of building and septic system designs prior to construction, health and safety factors cannot be accurately addressed.
RECOMMENDATION
While staff acknowledges the time, effort, and expense the Campbells have put into creating a family home site, staff concurs with the Planning Commission's recommendation to legalize the permitting of only one additional residence, for a total of three homes, which is likely more than adequate to house family members on an undersized farming parcel. Use Permits for a third residence on agriculturally-zoned property are commonly approved upon request, but a fourth unit is unusual.
The appeal asserts that the smaller of the units 'already qualifies as an accessory dwelling unit' or ADU; however, ADUs are not applicable in the unincorporated agricultural zones of the County where ancillary dwellings can be as large as 2,500 square feet, so long as the primary dwelling (unrestricted in size), ancillary dwelling, and residential amenities do not occupy more than 2.5 acres. ADUs are more properly placed in areas where higher densities are warranted, such as residentially-designated areas connected to public services.
While the current residential footprint of the Campbell property does not exceed 2.5 acres, staff believes the appeal to allow four homes on a 22-acre parcel does not meet the intent of General Plan policies that seek to manage growth in the County's agricultural areas and recommends upholding the Planning Commission's decision to legalize the permitting of one additional home, for a total of three homes.
As to the fourth unit, the Planning Commission debated extensively what should be done. The unit could either be demolished or, alternatively, converted to a non-habitable use by, for example, removing plumbing and kitchen features and walling off closets. The Planning Commission eventually decided that the fourth unit should be demolished to ensure it was not improperly converted to habitable use in the future.
Given that this matter comes to the Board of Supervisors
de novo, the Board has full discretion in deciding the issue, including denying the Use Permit outright, approving the Use Permit as to one but not both of the dwellings, or approving the Use Permit to as to both dwellings.
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