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Disclaimer: Everything here is for informational purposes only and not for the purpose of providing legal advice. The views and opinions expressed in this program are those of the speakers and do not necessarily reflect the views or positions of any entities they represent.
Real World Example: OVSD's Impact of adding a couple of small ADUs to a property.
2021-2022 Annual Sewer Fees: $1,458.24 (Duplex)
same property - no ADU
The Very Next Year >>>
an increase of $4,370
2022-2023 Sewer Fees $2,958.24 (Duplex, and two small ADUs)
2022-2023 Capacity Fee Deferred Payment $3,000 (two small ADUs)
at least $5,958.24 for 5 years
and then at least $2,958.24 per year thereafter
GOV § 65852.150
(b) It is the intent of the Legislature that an accessory dwelling unit ordinance adopted by a local agency has the effect of providing for the creation of accessory dwelling units and that provisions in this ordinance relating to matters including unit size, parking, fees, and other requirements, are not so arbitrary, excessive, or burdensome so as to unreasonably restrict the ability of homeowners to create accessory dwelling units in zones in which they are authorized by local ordinance.
GOV § 65852.2
(2) An accessory dwelling unit shall not be considered by a local agency, special district, or water corporation to be a new residential use for purposes of calculating connection fees or capacity charges for utilities, including water and sewer service unless the accessory dwelling unit was constructed with a new single-family dwelling.
GOV § 65852.2
(4) For an accessory dwelling unit described in subparagraph (A) of paragraph (1) of subdivision (e), a local agency, special district, or water corporation shall not require the applicant to install a new or separate utility connection directly between the accessory dwelling unit and the utility or impose a related connection fee or capacity charge, unless the accessory dwelling unit was constructed with a new single-family dwelling.
GOV § 65852.2
(5) For an accessory dwelling unit that is not described in subparagraph (A) of paragraph (1) of subdivision (e), a local agency, special district, or water corporation may require a new or separate utility connection directly between the accessory dwelling unit and the utility. Consistent with Section 66013, the connection may be subject to a connection fee or capacity charge that shall be proportionate to the burden of the proposed accessory dwelling unit, based upon either its square feet or the number of its drainage fixture unit (DFU) values, as defined in the Uniform Plumbing Code adopted and published by the International Association of Plumbing and Mechanical Officials, upon the water or sewer system. This fee or charge shall not exceed the reasonable cost of providing this service.
GOV § 65852.2
(h) Local agencies shall submit a copy of the ordinance adopted pursuant to subdivision (a) to the Department of Housing and Community Development within 60 days after adoption. The department may review and comment on this submitted ordinance.
GOV § 65852.2
“Local agency” means a city, county, or city and county, whether general law or chartered.
CaHCD ADU Handbook
What types of fees are considered impact fees?
A local agency, special district, or water corporation shall not consider ADUs as a new residential use for the purposes of calculating connection fees or capacity charges for utilities, including water and sewer services. However, these provisions do not apply to ADUs that are constructed concurrently with a new single-family home.
Can I still be charged water and sewer connection fees?
ADU Law does not cover monthly charge fees.
Does HCD have enforcement authority over ADU ordinances?
Yes... If the local agency does not amend its ordinance in
accordance with HCD’s findings or adopt a resolution explaining why the ordinance is compliant, HCD shall notify the local agency that it is in violation of State ADU Law. HCD may also notify the Attorney General of the local agency’s violation. While an ordinance is non-compliant, the local agency shall apply state standards. (Enforcement Process)
Letter from HCD to OVSD
ADUs for which no separate "connection" may be required and no connection fee or capacity charge may be imposed.
ADUs constructed entirely within an existing single family home or other accessory structure that satisfies the requirements of Government Code section 65852.2, subdivision (e), are exempt from any requirement to install a new or separate sewer connection; they are also exempt from connection fee or capacity charge
Letter from HCD to OVSD
ADUs for which a “connection” or “capacity” fee may be charged
ADUs that are not described in Government Code section 65852.2, subdivision (e), may be subject to a new utility connection directly between the ADU and the utility. If such a connection is mandated, then a fee or charges may be imposed but shall not exceed the estimated reasonable cost of providing the service for which the fee or charge is imposed. (Gov. Code, § 65852.2, subd. (f)(5) and Gov. Code, § 66013.
Letter to OVSD from calforhomes.org 1/25/21
First, the District appears to be under the impression that these provisions of the law first went into effect on January 1, 2020. Not so. The same substantive provisions have been in place since January 1, 2017, with the adoption of SB 1069 and AB 2299.
Second, the changes purport to be “retroactive.” That is not how fee legislation works. The District currently has no validly adopted fees for ADUs, so the current fee for ADUs is $0. The District has known about these changes for four years, and is only now choosing to adopt conforming code changes because it has been threatened with litigation. The District cannot go back and retroactively attempt to fix its own willful error to avoid its financial consequences.
Letter to OVSD from calforhomes.org 12/17/20
If we are forced to litigate against the District, the District will be stuck explaining to a court why it should ignore the plain language of state law, as well as HCD’s interpretation.
I am aware of your prior statements about the conflict between state ADU law and California’s constitutional and statutory rules for fair apportionment of utility costs. Your remarks vastly overcomplicated the issue. The Legislature has simply added the development of an ADU, without paying traditional residential connection fees, to the bundle of rights possessed by every homeowner in the state. Because every homeowner is equally entitled to develop such an ADU without paying capacity charges, there is no unfairness. The fact that some homeowners choose not to avail themselves of this right does not make it unfair for those homeowners to pay the same capacity charge as those who choose to do so.
Letter to OVSD from calforhomes.org 12/17/2020
If the District’s capacity charges are insufficient to account for the fact that homeowners can now build ADUs alongside their primary dwellings, the District should adjust the capacity charges for each new primary residential connection, not attempt to charge for primary connections a second time in violation of state law. And, of course, the District remains free to charge monthly or annual usage fees to account for the cost of an ADU’s actual use of the District’s system.
Letter to HCD from Andrew Stasse Co. 9/18/21
Regardless of the fact that no additional connection is mandated or necessary, OVSD is taking the position that Capacity charges are due in the amount of $17,614.76 for the construction of one 640 sq. ft. ADU and one 750 sq. ft. ADU ($8,807.38 each) based on plumbing fixture counts for each ADU.
Section G of the ADU handbook states that ADU’s less than 750 sq. ft. are exempt from special district impact fees.
March 28, 2022 Appeal Hearing
Jeff Palmer 1:32:53
"And if it's exempt, it's free. If it's if it's not exempt, then we charge it proportionally. So the appeal is based on our ruling. The appeal is not based on our interpretation of a state code. If the board wants to have a discussion, make some sort of ruling about whether or not our code complies with state law. That's different than the action that's before you tonight, before you tonight is really an action based on our interpretation of our code as it relates to this specific property."
Ordinance No. OVSD-82
Page 1
WHEREAS,
the District takes this action regarding ADUs to amend its Code of Regulations with the knowledge that certain provisions within Government Code §65852.2 and 65852.22 impose an unfunded state mandate upon the District that may be in conflict with California Constitution Articles XlllC and XlllD; and
WHEREAS, the District desires to make the amended OVSD code of regulations retroactively applicable;
Ordinance No. OVSD-82
Page 7
100.10 Conflict with State Codes
Any provision of this Code in conflict with any provision of the governing codes of the State of California due to revisions made in such governing codes shall be automatically superseded by said revisions.
Ordinance No. OVSD-82
Page 9
Capacity Charge
A one-time Charge for a new connection to the District Sewer System or expansion of use to the sewer system to cover a Parcel's proportionate cost of:
- the existing District Sewer System benefit conveyed to the Parcel being charged; and
- .the new or modified District Sewer System Facilities to be acquired or constructed in the future that are of proportional benefit to the Person or Parcel
Ordinance No. OVSD-82
Page 9
Connection
A physical connection between any type of piping (or any other sewage conveyance system) not owned by the District to another type of piping which is directly or indirectly connected to the District's Sewage System.
Ordinance No. OVSD-82
Page 19
301.1.1
- The Capacity Charges imposed by the District do not exceed the estimated reasonable cost of providing the service for which the Capacity Charges are imposed.
Ordinance No. OVSD-82
Page 20
301.4
Exempt ADUs. An ADU is exempt from the District's Capacity Charges if the ADU is any of the following ADUs described in 4(b)(1), (2), or (3) below and meets the requirements of 301.4(b)(4):
- An interior ADU that is located within an existing residential dwelling
- An ADU created by converting an existing accessory structure located on the property where the conversion does not require an expansion of the existing accessory structure of more than 150 square feet; or
- A junior ADU, as defined in Section 1O of this Code and in Government Code§ 65852.22(h)(1); and
- The ADU has exterior access and adequate setbacks sufficient for fire and safety as set forth in Government Code 65852.2(e)(1 )(A).
Will Serve Letter 2/1/21
A Private Sewer Lateral Inspection will be required for the parcel as well, which can be done prior to construction or during construction.
1. District represents to the County of Ventura/City of Ojai that the design and specifications for installation of sewers are satisfactory.
2. District represents to the County of Ventura/City of Ojai that appropriate treatment plant capacity is available and has been reserved for the subject parcel.
3. Itis understood that the County of Ventura/City of Ojai will not consider approval of the subject development without having first received the representations contained herein.
5. It is understood that the private sewer system, three (3) feet from the buildings to the main line connection, will be permitted and inspected by the Ojai Valley Sanitary District.
6. Upon receipt of approved plans from the County of Ventura/City of Ojai, please submit a copy to the Ojai Valley Sanitary District for the issuance of a Permit to commence construction.
The above representations are based on review of application submitted by the owner.
Upon completion of construction and inspection by the District, additional fees may be assessed if actual unit count is higher than indicated in the proposed plan.
Ojai Valley News Article 5/1/21
By a vote of 4-3 the board on April 26 also selected Jan. 1, 2018 as the retroactive date for the ADU connection fess to take effect.
The total of refunds and reduced payments is about $100,000, he estimated.
