OUR LEGAL ANALYSIS

April 30, 2025

Via Planning Commission Public Comment Form

City of San Diego Planning Commission

City Administration Building

12th Floor, 202 C Street

San Diego, California 92101

Re:      Comments on Item #1: Amendments to the City of San Diego’s Accessory Dwelling Unit and Junior Accessory Dwelling Unit Regulations        

Dear Planning Commissioners:

On behalf of Neighbors for a Better Pacific Beach, we provide the following comments on Agenda Item #1, which addresses proposed amendments to the City of San Diego’s Accessory Dwelling Unit (“ADU”) and Junior Accessory Dwelling Unit Regulations, as directed by the City Council on March 4, 2025.

Neighbors for a Better Pacific Beach was established in response to deeply concerning projects advanced under the City’s Bonus ADU Program. Notably, the proposed Pacifica project in the RS-1-7 zone seeks to add 126 so-called “accessory dwelling units.” Despite the Pacifica project’s significant impacts on the surrounding community, it is being processed as a ministerial action under the Bonus ADU Program, thereby circumventing meaningful public review and input.

The Bonus ADU Program has fostered an unregulated, “Wild West” approach to urban planning. This policy is placing significant strain on the City of San Diego’s (“City”) already underfunded infrastructure, depriving the City of critical development impact fees, and intensifying burdens on local neighborhoods. Moreover, it is leading to the degradation of sensitive canyons and hillsides and has effectively excluded the public from meaningful participation in the planning process.

The City has a duty to protect San Diegan’s health, safety, and welfare. This is exercised through enacting and enforcingthe City’s ordinances and regulations, and through individual-level project review. The City has admitted that the ADU Bonus Program “does not mitigate unintended impacts.”[1]

The Bonus ADU Program has far exceeded its intended scope, enabling large-scale projects to bypass discretionary review and meaningful mitigation of impacts, contrary to the requirements of the California Environmental Quality Act (“CEQA”). Staff continue to approve Bonus ADU projects without public transparency, accountability, or any mechanism for appeal, raising serious concerns under both CEQA and the California Constitution. 

The current staff proposal before the Planning Commission would largely preserve the status quo, despite clear direction from the City Council to address the widespread community concerns voiced at the March 4, 2025 City Council meeting. Residents from across San Diego have shared firsthand accounts of the substantial negative impacts the Bonus ADU Program has had on neighborhood character, infrastructure, and quality of life.

Neighbors for a Better Pacific Beach respectfully urges the Planning Commission to recommend denial of the staff’s proposed changes, support including the RS 1-7 zone in the repeal of the existing Bonus ADU Program, and to endorse the revisions proposed by the Community Planners Committee (“CPC”).

I.              The Bonus ADU Program Must Be Revised in Accordance with the Community Planners Committee’s Proposed Revisions in All Zones, Including RS 1-7.

City staff’s proposed amendments would only repeal eligibility for the Bonus ADU Program in selective zones: RS-1-1 through RS-1-4 and RS-1-8 through RS-1-11.  (Staff Report, p. 6.) Neighbors for a Better Pacific Beach urges the Planning Commission to adopt the CPC revisions that apply to all zones, including RS 1-7.

On March 4, 2025, the City Council debated including additional zones, including RS 1-7, in the repeal they directed. The City Council ultimately did not include RS-1-7, a decision influenced by information provided during the hearing by Planning Director Heidi Vonblum. When asked by Councilmember Foster III about the rationale for the exclusion of RS-1-5 through RS-1-7 from staff’s proposed repeal, Ms. Vonblum stated: 

The zones that are listed in the proposed motion, we were able to confirm that those zones …represent zones that have minimum lot sizes greater than 10,000 square feet. Having a lot size greater than 10,000 square feet is a factor that can contribute to an outlier circumstance because that gives you the higher floor area ratio, which means a higher building square footage. The zones that were not included on there included zones RS-1-5, 1-6, and 1-7. Those zones have smaller lot sizes . . .[2]

The Staff Report echoes a similar rationale: that each of the proposed zones to be removed from the Program “has minimum lot sizes of 10,000 square feet or greater.”[3] This implies that the problems with the Bonus ADU Program pervading RS-1-1 through RS-1-4 and RS-1-8 through RS-1-11 would not affect RS-1-7. 

Ms. Vonblum’s suggestion that RS-1-7 does not need to be included in the repeal because of the relatively small lot size is unfounded, as there are numerous large parcels in the RS-1-7 zone. For example, one project at 2596 Chalcedony Street—proposed on an approximately 127,000 feet lot[4]—proposed the construction of one hundred and twenty-six ADUs on-site.[5] Many other parcels zoned RS-1-7 well exceed the 5,000 square foot lot minimum, including the following parcels:

·      2535 Beryl Street (2.02 acres)

·      3104 Geronimo Avenue (3.35 acres)

·      4604 Iroquois Avenue (2.18 acres)

·      3303 Wicopee Place (2.59 acres)

·      2993 Edell Place (2.3 acres)

·      3605 Pocahontas Street (1.05 acres)

These parcels are surrounded by other similarly sized parcels, also zoned RS-1-7. While RS-1-7 may be subject to a small minimum lot size, numerous RS-1-7 lots throughout the City well exceed those standards and are ripe for the construction of extremely large ADUs projects that are the catalyst for the City Council’s directed repeal.

Furthermore, RS-1-7 lots accounted for 93% of all ADU homes permitted through the Bonus ADU Program from 2021 to 2024:

(Staff Report, p. 7.)

These lots, which can range up to nearly 150,000 square feet[6], have consistently proven to be the most sought-after zone for the development of large-scale ADU complexes, contrary to assertions suggesting otherwise.

The current staff proposal recommends repealing the Bonus ADU Program only in zones RS-1-1 through RS-1-4 and RS-1-8 through RS-1-11. However, these zones collectively represent less than one quarter of the acreage currently eligible for the Bonus ADU Program. If adopted, these changes would leave the majority of development potential untouched – particularly in RS-1-7, where the highest concentration of ADU construction has occurred.

Omitting RS-1-7 limits the scope of the City Council’s desired reforms, effectively preserving the status quo in the zones most impacted by intensive ADU development. The rationale offered by Ms. Vonblum – that RS-1-7 should be excluded from any repeal due to the perceived unlikelihood of development on “smaller” parcels – does not align with the data, given that RS-1-7 lots not only vary widely in size but have also experienced the greatest volume of ADU construction citywide. In contrast, the CPC’s proposed revisions more effectively address the City Council’s direction.

This selective approach risks undermining the effectiveness of the reform and could perpetuate the very issues the Council sought to address. Furthermore, it is arbitrary and not supported by the evidence in the record. To ensure equitable and meaningful policy outcomes, it is imperative that any revisions to the Bonus ADU Program address RS-1-7 and other high-impact zones directly, rather than exempting them based on unsupported assumptions.

II.            The Bonus ADU Program Does Not Improve Housing Affordability

Neighbors for a Better Pacific Beach would like to correct inaccurate assertions by City staff, developers, and the press that the Bonus ADU Program promotes affordable housing, and that its repeal will harm housing affordability.

The City Planning Staff’s 2024 Annual Report on Homes admitted that the vast majority of ADU homes permitted in 2023 were “Above Moderate” – which appears to mean “market rate” units. In particular, 95% were market rate units. 

(2024 Annual Report on Homes, page 14)[7]

Within the Bonus ADU Program, the City reported only three Very Low Income and three Low Income homes permitted. In comparison, multi-family homes provide low income and very low income units. Ironically, the large-scale “ADU” projects allowed under the City’s Bonus ADU Program, which would normally be processed as multi-family housing projects, serve to deprive the City of more low-income and very-low income units. The Planning Commission Staff Report improperly groups “Moderate Income” units with “Very Low Income” and “Low Income,” into one “affordable” category, in providing its various charts and statistics to the Planning Commission. (See Planning Commission Staff Report, p. 6.) 

The “Moderate Income” units do not even deliver affordability as claimed. The Pacifica Project’s investment projections advertised by the applicant, SDRE Homebuyers, to potential investors offer a crucial insight into how the Bonus ADU Program only serves to increase housing prices in San Diego, through increasing land value and monthly rents. The Pacifica Project intends to rent all 126 units, each at 450 square feet, for $3,000 a month, providing the applicant $378,000 in rent each month. (Exhibit B, p. 8).  This underscoring that “Moderate Income” units are not truly affordable and should not be classified as such. 

The advertisement confirms that the Pacifica Project would pay $0 in development impact fees. (Exhibit B, p. 6.) Meanwhile, the Pacifica Project reports an expected project of over $70 million in 10 years. (Id. at p. 9.) SDRE provides the following investment summary: “With a three-year hold time, it is anticipated to produce a net operating income (NOI) of $3M, an exit of $75.6M with an anticipated 125% ROI for investors.”[8]

The same advertisement provides financial information about another nearly completed project. (Exhibit B, p. 6.) A lot with two units was purchased for $889,000. Two units were added, and the lot was sold for $3.2 million. (Ibid.) SDRE’s list of completed projects further highlights how the Bonus ADU Program has created an avenue for investors to even further increasing the price of more moderately priced homes.[9] 

In fact, the Federal Reserve Bank of San Francisco released its research findings last month that supply constraints do not explain housing price and quantity growth across the United States. (Exhibit C.) Rather, the Federal Reserve reported that “from 2000 to 2020, we find that higher income growth predicts the same growth in house prices, housing quantity, and population regardless of a city’s estimated housing supply elasticity.” This held true for data going back to 1980.

Moreover, the Reserve explained:

Using a general demand-and-supply framework, we show that our findings imply that constrained housing supply is relatively unimportant in explaining differences in rising house prices among U.S. cities. These results challenge the prevailing view of local housing and labor markets and suggest that easing housing supply constraints may not yield the anticipated improvements in housing affordability.

(Ibid.)

Putting the Federal Reserve’s findings in simpler terms: the single most important factor, one that far outweighs “constraints,” is the income and wealth of the people who are moving into a city. The more market-rate, “luxury” units the City builds, the more it drives up housing prices. The Bonus ADU Program, and in particular the Pacifica Project, provide concrete examples of this. 

Neighbors for a Better Pacific Beach urges the Planning Commission to reign in the Bonus ADU Program. Not only does it wreak significant unmitigated impacts, it drives up land prices and prices out San Diegans who are now competing with investors like SDRE homebuyers and produces primarily market-rate, expensive units that further render housing unaffordable in San Diego.

III.          Staff’s Proposed Revised Bonus ADU Program Still Violates State Law

1.     The Bonus ADU Program Continues to Create Significant Unmitigated Impacts Not Analyzed Under the Initial Approval

On October 30, 2020, the City Council adopted the Accessory Dwelling Unit Bonus Program through Ordinance 021254. The Staff Report (Exhibit D) for the ordinance claimed that “Implementation of this project’s actions would not result in new significant direct, indirect,

or cumulative impacts over and above those disclosed” in the 2008 General Plan Environmental Impact Report (“EIR”), 2020 Housing Element Addendum to the 2008 EIR, and the Climate Action Plan EIR. Therefore, no mitigation was required.

Yet, a draft resolution[10] prepared by the City Attorney for the March 4, 2025 City Council meeting states, “The ADU Bonus Program does not mitigate unintended impacts such as additional density in Very High Fire Severity Zones, locations with restricted emergency access, and inefficient lot design and resource management.”[11]

Councilmember Foster further identified in a presentation at the March 4, 2025 City Council meeting the following as concerns regarding the Bonus ADU Program:

·      Impact on community plans, neighborhood character, infrastructure capacity, and public safety.

·      The fact that the Bonus ADU Program does not mitigate unintended impacts such as:

o   Additional density in Very High Fire Severity Zones

o   Locations with restricted emergency access, and

o   Inefficient lot design and resource management.

·      The collection of Development Impact Fees for the additional market rate/unrestricted units that are needed for infrastructure improvements.

The Bonus ADU Program has far exceeded its reported scope and prevents discretionary review and mitigation of large-scale projects with significant impacts, in violation of CEQA. Both the City and community members have identified that the findings made in Ordinance 021254 that there were no new significant impacts of the Bonus ADU Program and no mitigation was required were false. 

2.     The City Must Uphold its Duty to Protect Health, Safety, and Welfare

Municipalities have a fundamental duty to protect the health, safety, and welfare of the residents therein. Significant risks and impacts—including impacts to health and safety, such as unintended impacts to density in Very High Fire Hazard Severity Zones (“VHFHSZs”)—from the Bonus ADU Program have been identified and the City must mitigate these impacts.

Furthermore, while City governments may grant certain powers to administrative agencies, those grants must attach procedures which safeguard against possible misuses of that power. (City of Burbank v. Burbank-Glendale-Pasadena Airport Authority (1999) 72 Cal. App. 4th 366, 376.) Further, delegations of administrative or regulatory powers must include sufficiently definite directions for the administrative body in the manner of exercising its delegated powers. (Id., citing Katz v. Dept. of Motor Vehicles (1973) 32 Cal. App. 3d 679, 684.) A city may therefore delegate its discretionary powers, but may not totally abdicate itself of those powers in the process. (Id., citing Kugler v. Yocum (1968) 69 Cal. 2d 371, 384.)

Here, Staff’s proposal fails to address the Bonus ADU Program’s impacts to health and safety. It also fails to address the widespread ministerial classification of Bonus ADU Program projects without adequate directions and safeguards to the Planning Department, and with no opportunity for meaningful review of the impacts of individual ADU projects.

For example, the CPC proposal specifically called for the prohibition of bonus ADUs in (1) VHFHSZs and (2) on all cul-de-sacs or other roads with only one point of ingress and egress. This would ensure that bonus ADU units are not being sited in locations that pose a hazard in the event of a wildfire, evacuation, or other emergency. In contrast, the City’s proposal would only prohibit the construction of ADUs in High Fire Hazard Severity Zones and VHFHSZs if the lot is also on a street that only has one point of ingress and egress. (Staff Report, p. 12.) This change impermissibly weakens the term and fails to offer protections for residents who live on a street with only one access point, but do not live in a VHFHSZ. However, these residents would be equally impacted by the addition of ADUs and the associated additional cars in the event of an evacuation.

3.     The City Has Unlawfully Classified All Bonus ADU Projects as Ministerial

The City Council requested additional revisions of the Bonus ADU Program during its March 4, 2025 hearing. Neighbors for a Better Pacific Beach urges the Planning Commission to recommend revisions that protect the community’s ability to participate in the review of Bonus ADU Program projects. Therefore, one necessary revision is provision of notice to neighbors of applications for Bonus ADU Program projects, clear guidance of circumstances that render a Bonus ADU Program project discretionary, and provision of the right to appeal Planning and Development Services Department (“DSD”) staff determinations. The City has improperly classified all Bonus ADU Programs as "ministerial," even in the face of overwhelming evidence to the contrary. Planning Department and DSD frequently exercise their discretion on Bonus ADU Projects and often utilize improper interpretations of the San Diego Municipal Code, with an end result being that a project maintains its classification as ministerial.  

The California Supreme Court has instructed that the "blanket classification" of all permit issuances as ministerial is unlawful where some of an agency's decisions may be discretionary. Accordingly, classifying all issuances as ministerial violates CEQA. (Protecting Our Water & Environmental Resources v. County of Stanislaus, 10 Cal.5th 479 (2020).)

In one egregious example, staff in the Building and Land Use Enforcement (“BLUE”) concluded that a Bonus ADU Project applicant had illegally graded sensitive vegetation along a canyon, thus requiring a discretionary permit. The Planning Department instructed BLUE to remove this finding and re-classified the project as ministerial. (Exhibit E.) BLUE further admitted that DSD then improperly issued building permits before all code enforcement violations were remedied. (Ibid.) The Project has since been constructed.

The Pacifica Project is another example of a Bonus ADU Program that has been improperly classified as ministerial. The project proposes over 120 units in a very high fire zone and would encroach on a significant archaeological site and potentially environmentally sensitive lands, per the City's own internal review comments. Our office submitted a Request for Notice of Decision related to the Project, which the Planning Department has refused to confirm receipt or even respond to. (Exhibit F.) This Project, and other projects with significant impacts, must be treated as discretionary to avoid violating CEQA.

Countless community members have alerted DSD and Planning to Bonus ADU Program project violations, to no avail. The Chollas Valley Community Planning Group alerted the City that it has documented Bonus ADU projects lacking required pedestrian pathways that have been submitted, and in some cases, approved, by the Development Services Department. (Exhibit G.) This contradicts assertions made by Planning Director Ms. Von Blum to City Council, holding out the Program's requirement for a pedestrian pathway.

After a community member alerted Director Elyse Lowe of 15 improper approvals of Bonus ADU Projects that did not comply with the City code, Ms. Lowe responded: “DSD staff is not structured in a way that I or other staff have the time to go over every project interpretation, decision and detail at any time for whomever in the public is asking for any length of time they desire.” (Exhibit H). Ms. Lowe continued: "DSD is a cost-recoverable department, and due to current and future budget projections that show DSD expenses are exceeding revenues, responses to public requests for information for active permits in the process are not always able to be responded to in a fast timeframe." Meanwhile, the City fast tracks approvals of Bonus ADU Program projects.

There are countless examples of Bonus ADU Program projects not undergoing proper review. (Exhibit I.) Projects are being approved that violate the San Diego Municipal Code, and there is no recourse to community members.

Neighbors for a Better Pacific Beach calls on the Planning Commission to require an appeal process of Bonus ADU Programs that result in significant impacts.

IV.          Revisions Proposed by the CPC Would Not Result in a “Wholesale” Repeal of the Bonus ADU Program, Nor Would They Violate the Housing Accountability Act or Render the Housing Element Non-Compliant

In a February 28, 2025 memorandum to the City Council, Ms. Vonblum asserts, “A wholesale repeal of the ADU Bonus Program would violate State housing laws in the absence of corresponding replacement regulations that incentivize and promote the creation of affordable ADU homes.”

As a preliminary matter, the CPC’s proposal does not purport to entirely repeal the Program. Rather, the CPC’s proposal would repeal the Program for zone RX-1-1,[12] zone RX-1-2, and zones RS-1-1 through RS-1-14. This proposal would continue to allow for bonus ADUs in areas zoned for multiple units.

Moreover, State law does not preclude the City from repealing the Bonus ADU Program. In general, the Housing Crisis Act (“HCA”) requires a municipality that downzones or changes land use density to a less intensive use to concurrently upzone or increase density elsewhere, to ensure no net loss in residential capacity. (Gov. Code §66300(h)(1).) The HCA broadly applies to changes in land use density, but does so in light of existing law as of January 1, 2018:

Notwithstanding any other law except as provided in subdivision (h), with respect to land where housing is an allowable use, an affected county or an affected city shall not enact a development policy, standard, or condition that would have any of the following effects . . . Changing the general plan land use designation, specific plan land use designation, or zoning of a parcel or parcels of property to a less intensive use or reducing the intensity of land use within an existing general plan land use designation, specific plan land use designation, or zoning district in effect at the time of the proposed change, below what was allowed under the land use designation or zoning ordinances of the affected county or affected city, as applicable, as in effect on January 1, 2018, except as otherwise provided in clause (ii) of subparagraph (B) or subdivision (h). For purposes of this subparagraph, “reducing the intensity of land use” includes, but is not limited to, reductions to height, density, or floor area ratio, new or increased open space or lot size requirements, new or increased setback requirements, minimum frontage requirements, or maximum lot coverage limitations, or any other action that would individually or cumulatively reduce the site’s residential development capacity.

(Gov. Code §66300(b)(1)(A), emphasis added.)

While this provision is broad and would apply to changes in land use contemplated under the Program, including changes to setbacks and density, the HCA would not apply here. Section 66300 applies where the land use density is reduced below what was allowed as of January 1, 2018. The City’s Bonus ADU Program was not enacted until 2020, so while repealing portions of it may reduce the densities originally permitted by the Program, those provisions were not in effect in 2018. Therefore, there would be no violation of the HCA. 

V.            Conclusion

In conclusion, Neighbors for a Better Pacific Beach urges the Planning Commission to take decisive action to address the substantial and well-documented impacts of the Bonus ADU Program. The evidence demonstrates that RS-1-7 lots have been disproportionately affected, accounting for the vast majority of ADU construction under the program. Excluding RS-1-7 from meaningful reform will leave the door open for continued large-scale developments that strain infrastructure, alter neighborhood character, and circumvent public oversight.

The staff’s proposed amendments do not respond adequately to the concerns raised by residents citywide. Moreover, claims that the Bonus ADU Program advances housing affordability are not supported by the City’s own data, which shows that most units produced are market-rate and do not address the needs of low- and moderate-income households.

The City has a legal and ethical obligation to ensure that growth is managed responsibly, with appropriate safeguards for community character, public safety, and the environment. Reforms must include RS-1-7 and other high-impact zones to prevent further unmitigated impacts and restore public confidence in the planning process.

We respectfully request that the Planning Commission recommend denial of the staff’s proposed changes, support the inclusion of RS-1-7 in the repeal of the Bonus ADU Program, and endorse the comprehensive revisions advanced by the Community Planners Committee. Only by taking these steps can the City fulfill its duty to protect the health, safety, and welfare of all San Diegans and ensure that future housing policy is both equitable and sustainable.

Sincerely,

Josh Chatten-Brown

 cc

 City Council

City Attorney

Heidi Von Blum

Elyse Lowe