If you haven’t read my blogs before, I own a small architecture studio in the City of San Diego. We specialize in modern + minimalist residential designs. One of the things I take pride in, is how diligent my staff is with our clients projects. For example, we read the municipal code.. a lot.
I have literally read this code so many times over the past decade that I can now be considered an expert. It’s a bookmark on my browser + I can access it in one click on my cell phone. When other architects have questions about their projects I’m usually the person they call.
But to complete the type of architectural designs we specialize in, understanding San Diego’s municipal code is a prerequisite.
Most of the projects we work on are in-fill projects on tiny lots, single-family homes as well as Accessory Dwelling Units (ADUs) / Junior Accessory Dwelling Units (JADUs). Sometimes to make a project fit on a postage stamp lot, the design can come down to a few inches.
While this takes extreme diligence + can be difficult, it’s what we are good at. The problem arises when the municipal code becomes a moving target + when the plan reviewers use a secret book of invisible codes.
In theory, the process is perfect: 1. the code is published, 2. the architect designs per that code, 3. the project is plan checked based on that code, 4. the project is built per that code.
However, in practice the written code usually doesn’t cover every design scenario. Especially scenarios which utilize creative architectural solutions.
In this article I’ll try to explain the latest (+ also the most insane) experiences we’ve had recently dealing with San Diego’s permit office, the Development Services Department.
1.Junior Accessory Dwelling Unit Design Creates a Dispute Between DSD Staff
On this particular project, we’ll call it the Flintstone Residence, the clients were looking for a way to add additional space to the single-family dwelling unit they were living in + also allow them to rent part of it to their friends who would become roommates.
They needed some separation, but no complete separation from their tenants.
San Diego has a perfect typology for this which is the Junior Accessory Dwelling Unit (JADU). These units must be attached to other structures, they are limited to 500sf, can be legal rentals as long as the homeowners reside on the premises, can be within the side / rear setbacks, + most importantly they can have an interior connection to the connected dwelling unit. You can think of a JADU as a kind of master suite.
On this particular project we design the JADU to be an addition to the existing dwelling unit.
The JADU would be located within the rear setback + would have an interior connection to the home where we designed a pocket door to separate the two units when needed.
The issue began when we received a plan review comment requiring us to fire- rate the walls between the two units.
Typically this is required when two independent units are connected, however the unique function of the JADU’s interior connection allows the unit to function like a separate suite rather than a separate unit. So no fire- rating would be required. Note: if the JADU was designed w/o that interior connection a 1hr fire-rating would be required.
So I understand that this is confusing to DSD staff. But if you think about it logically, we have a non-fire rated pocket door separating the two spaces. We also have the same mechanical system supplying air to both parts of the home. So what sense would a fire-rating make when those two elements compromise the rating?
I was able to resolve this issue through a series of emails, running things up the corporate ladder, bypassing the immediate supervisor + speaking directly w/ the Building Official who agreed with our design logic. The supervisor we bypassed took offense to this + took it upon himself to reevaluate the entire project.
We had already received sign-off from Zoning but he claimed that the JADU design was not to code + that this project would set a bad precedent for ADU projects in San Diego. He was pushing for our entire project to be reevaluated by the Zoning Dept. His argument was that a JADU could only be created within the shell of an existing home or when a new home is built.
He cited the code below.
This is another one of those situations where logic is needed. The intent of the State’s ADU/JADU regulations is to add more housing rather than restrict the development of new units. If this supervisor was correct, then our municipal code would be working against the intent of the ADU/JADU regulations.
My response was to point out that a JADU designed the way we did is inherently within the walls of the single dwelling unit. Since we were proposing an addition to the existing home the JADU was both within the existing + the proposed single dwelling unit.
Of course I also provided a bunch up supporting documentation from the code + even their own Companion Unit Handbook. While this handbook is no longer valid, it does verify that JADUs were able to be built as additions to existing dwellings in the past. Walking this back would prove that current regulations are now more restrictive + not meeting the intent of the State ADU requirements.
Luckily I had emailed one of the top directors months ago when we were in our Design Development Phase. Our policy is to reach out for clarification anytime the municipal code is not crystal clear. We were glad we did because that ultimately was the determining factor which allowed us to permit this project.
The frustrating part of this experience is two fold.
Often times it does feel like the Development Services Department (DSD) is using some sort of invisible code which we are not privy of when they review our projects. This is the importance of having clarity in the municipal code. By the time a project is submitted for a permit, thousands of dollars have been spend on design + engineering.
The second + probably most frustrating thing about these conflicts with the DSD is that it feels like obstruction is always the first solution.
When the City is experiencing a historic housing crisis, + the State modifies their code to add more housing, you’d think the DSD staff would lean towards the side of more housing rather than less. Especially when interpreting their own municipal code. I’m not sure if this is an effect of the individual staff’s ego or if they are just NIMBY-minded. Either way it’s incredibly disheartening.
2. A Paperwork + Red Tape Nightmare to Obtain Credits for Various Fees
On another project, this one we’ll refer to as the Julius Development, we designed 5 ADUs + 1 Dwelling Unit on a single lot. Our historic research indicated that there was once an apartment structure on the lot we were developing. This lot was currently vacant + the owner had no knowledge of this apartment. But the building record, which is the document used to apply property taxes, confirmed there was once a structure on the lot which lasted until at least 1970 when it was last assessed.
Where did the apartment go? How did it disappear? We were never able to verify that. All we know is that there was definitely a structure on the lot at one time + there definitely isn’t a structure on the lot today. One neighbor claimed the apartment burned down, which is probably the most logical explanation.
This was actually great news for our client because he was due credits for Water/ Sewer Fees, Impact Fees, + School Fees. This adds up to thousands of dollars which he will save developing this lot. So all we had to do was show the DSD our evidence + we should be credited right? Not quite..
San Diego’s Development Services Department doesn’t recognize the apartment structure as demolished because they don’t have a demolition permit on record. Think about that. The owner of this structure, 50 years ago, was supposed to apply for a demolition permit after he lost his entire apartment complex in a fire!
We were able to reason our way to get credits for all the fees except the School Fees. They required us to process a demolition permit, retroactively, for a structure which has not existed in half a century. We conceded to process the permit as demolition permits are typically easy to achieve.
We put the documents together + made out submittal. We received comments from the DSD requiring us to include our stormwater notes on the plans. Then they requested a $575 demolition deposit (which would be returned after we proved we diverted 50% of the demolition from the landfill). We eventually were able to get them to waive this deposit.
When we were finally able to get them to issue the approval for demolition the DSD had Owner’s name incorrect on the document. We requested this to be corrected + were told it would take 6 days to revise. When I complained about the excessive delays I was told our project was being audited by the DSD which was taking longer than expected. I requested a copy of the audit for my records + I was told that it was for internal use only. So the DSDs internal audit created over a weeks delay on my clients project.
Once the DSD was able to issue the approval with the correct name, we were able to send this to the School District + request credits for their fees. When we send the DSD’s approval to the School District they were not able to do the math to issue the credit. We connected them with the proper supervisor at the DSD who promptly told us not to waste her time. We reiterated this is not a question coming from us, but from the School District, related to the approval her staff issued.
Even though we provided the calculations to verify the proper amount of the credit, we were told the person who ultimately would have to do this math was on vacation for almost 3 weeks. We were instructed to pay an incorrectly issued invoice + our client would be reimbursed once this person returned from their trip.
Unfortunately we cannot advise our clients to pay incorrect invoices. I suggested we use our calculation to asses the fees + if it was wrong we would settle up later (basically the inverse of what they suggested). We never received a response.
3. The DSD Moves the Goal Posts on ADU Setbacks
We track code changes pretty thoroughly. It’s important for our design work to understand what the municipal code will allow at time the project is ready to be submitted for a permit. Once you make you’re submittal you are locked into the code which was valid at that time.
We knew well in advance that the City of San Diego was going to be changing the side + rear setback requirements for ADUs from 0’ to 4’ for two story structures. As I mentioned earlier, as long as we know what the code is, we can design to it. But as usual, in a city as large as San Diego, there are exceptions.
After reviewing the municipal code for a new project, we realized that there was an exception for lots with RM-2-4, RM-2-5, + RM 2-6 lots which are 25’ or less. Those lots can apply a 3’ minimum sideboard setback “to the entire premises.” Premises is a term defined in the municipal code + basically means the entire lot.
But we wanted to be sure to do our due diligence here because we were about to spend lots of time + money on the design / engineering of this project. So I reached out via email to the 2nd highest supervisor available to me with the question. I included a diagram in my email for absolute clarity. He responded back that we can apply the 3’ setback. We proceeded with design, engineering, + finally made our submittal for a permit.
Fast forward to August when the Planning Dept. staff made a presentation to explain the new ADU setbacks which had finally been rolled into the municipal code. Someone asked the question about the 3’ setback + the answer from DSD staff was that a 4’ setback must me maintained.
I immediately emailed the supervisor to confirm the specifics of this setback. He pushed me off to his staff who insisted on the 4’ setback. I provided the email I received as well as documentation that the setback applies to the entire lot (which would include ADU structures). His response was that when there are conflicts, Chapter 14 supersedes Chapter 13 of the municipal code. He also stated that City Council had not approved a 3’ exception.
I politely reminded that an exception is not a conflict + if City Council did not want 3’ setbacks on these lots they would’ve revised the exception, omitting it from the code. But I compromised to re-design + re-engineer the entire project (which was a 5 unit development) as long as they would provide a written statement addressing the supervisors direction + providing their exact interpretation of the municipal code. The next morning I received an email grating this project a “special exemption” to use the 3’ setback.
While this solves my problem on this specific project, the special exemption I was granted does not clear up the root issue which is: can a 3’ setback be used on these types of lots in the future?
This is very frustrating because there was literally no more due diligence possible that we could do to make sure we met the new code + our project was still obstructed.
Further, the 4’ side setbacks on a 25’ lot create an incredible constraint for designing functional ADUs. After you factor in the width of the exterior walls you’re left with less than 16’ in interior width. That makes it unpractical to divide into two bedrooms. With 3’ setback, an 18’ interior width still makes smaller bedrooms possible. So this ultimately makes it more difficult to develop these smaller lots.
Lastly, an effort to instate equality into ADU development has been made by the State. But when we explore the implications of this 4’ ADU setback across various lots types you can discover that the DSD’s interpretation creates more inequality. Consider that on wider lots with 5’ setbacks, an ADU can encroach into those setbacks 1’ further than a Dwelling Unit.
However on narrower lots with 3’ setbacks the ADU gets penalized 1’ by requiring a 4’ setback where the Dwelling Unit can have a 3’ setback. Not very logical right?
Final Thoughts
In conclusion, it is critical to have a clear municipal code which we can use to base our designs on.
If there are scenarios which are not covered in the code, a free determination should be provided to architects + respected by plan reviewers. I realize there is a way to pay for these determinations through a formal preliminary submittal process, but it is unreasonable to pay for information which should be clear + accessible.
What we find more often than not is that our projects are obstructed through DSD staff misinterpretations of the municipal code which are devoid of logic.
With the state of the housing crisis in San Diego we can only be left thinking who are the people working for the Development Services Department + why are their efforts not aligned w/ the goals for more housing?
