City of Encinitas, CA Chapter 30.48 ACCESSORY USE REGULATIONS

§ 30.48.010 Title and Purpose.

The provisions of this chapter shall be known as the "Accessory Use Regulations." The purpose of these provisions is to establish the relationship among the principal and accessory uses and the criteria for regulating accessory uses.

§ 30.48.020 Accessory Uses Encompassed by Principal Use.

In addition to the principal uses expressly included in the use regulations, each zone subject to such use regulations shall be deemed to include such accessory uses which are specifically identified by these accessory use regulations; and such other accessory uses which are necessarily and customarily associated with, and are appropriate, incidental and subordinate to, such principal uses. When provided by these regulations, it shall be the responsibility of the Director to determine if a proposed accessory use is necessarily and customarily associated with, and is appropriate, incidental, and subordinate to the principal use, based on the Director's evaluation of the resemblance of the proposed accessory use to those uses specifically identified as accessory to the principal uses and the relationship between the proposed accessory use and the principal use. Such determinations which are made by the Director shall be subject to the appeal procedure of this Code pursuant to Chapter 1.12.

(Ord. 2022-07)

§ 30.48.030 Accessory Uses Subject to Controls.

Accessory uses shall be controlled in the same manner as the principal uses within each zone, except as otherwise provided by these regulations.

§ 30.48.040 Residential and Agricultural Zones.

Subject to the restrictions and limitations specified, the following accessory buildings and uses shall be permitted in zones where residential and agricultural use types are permitted:

A. Private Garages, Attached.

1. Total area not to exceed 1,000 square feet or 50% of living area of the principal residence, whichever is less. A garage area of 480 square feet is permitted regardless of the living area of the principal residence.

2. May be two stories if second floor is an integral part of principal residence or approved accessory apartment, guest house, accessory living quarters, or farm employee housing.

3. Additional area may be permitted by issuance of a minor use permit.

B. Private Garages, Detached.

1. The total area of a detached garage shall not exceed 1,000 square feet or 50% of the living area of the principal residence, whichever is less. A detached garage area of 480 square feet is permitted regardless of the living area of the principal residence.

2. When located within the side yard or rear yard setback in accordance with Section 30.16.010E of this title, detached garages shall be limited to one story and shall not exceed 12 feet maximum height, except that roofs pitched not less than 3:12 may extend an additional two feet to a maximum 14 feet to peak of roof. Detached garages that comply with the main building setbacks shall be limited to two stories and shall not exceed 24 feet maximum height.

3. Additional area, height and story, not to exceed the height and story limits outlined for residential structures (see Section 30.16.010B6 of this title) may be permitted by issuance of a minor use permit.

C. Children's Playhouses, Patios, Porches, Gazebos, etc. See Section 30.16.010E for regulations.

D. Radio and Television Receiving Antennas, Dish Antennas, Flag Poles.

1. Radio antennas shall have a maximum height of 100 feet and shall not be subject to design review. Height increases above 100 feet may be approved subject to a minor use permit.

2. Television receiving antennas and flag poles shall be limited to a maximum height of 30 feet for nonresidential zones and subject to the height standards for residential zones (Section 30.16.010B6).

3. Satellite antennas shall meet the standards of design review regulations identified in Section 23.08.090.

E. Greenhouses. In all residential use zones, greenhouses are limited to 450 square feet unless a minor use permit is approved to increase the size.

F. Silos, Windmills and Tank Houses. Maximum height of 26 feet.

G. Detached Storage Buildings, Workshops, Hobby Shops, Recreation Rooms and Other Similar Uses (Nonbusiness or Nonagricultural Purposes).

1. Area for any one detached building is not to exceed 450 square feet. When on the same lot as a detached private garage all uses, together, shall not exceed 1,200 square feet or 50% of the living area of the principal residence, whichever is less.

2. When located within a required interior side or rear yard setback area in accordance with Section 30.16.010E of this title, detached structures shall be limited to one story and shall not exceed 12 feet maximum height. Roofs pitched not less than 3:12 may extend an additional two feet to a maximum 14 feet, to peak of roof.

3. Detached accessory structures, other than those structures otherwise regulated within this chapter, that meet all of the required main building setbacks and that do not project into any required setback area may have building height and story as outlined for residential structures. (See Section 30.16.010B6.)

4. Additional area may be permitted by issuance of a minor use permit. When located within or projecting into a required interior side or rear yard setback area, additional height and story, to a maximum of the building height and story allowed for residential structures (see Section 30.16.010B6), may be permitted with the issuance of a minor use permit.

H. Barns and agricultural storage buildings shall be limited as follows:

1. In residential (except zones requiring one acre minimum), a maximum floor area of 450 square feet and one story not to exceed 12 feet in height. When on same lot as a detached private garage, workshop and/or storage building, all uses, together, shall not exceed 1,200 square feet or 25% of the living area of the principal residence, whichever is greater. In residential zones (requiring one-acre minimum), a maximum floor area of 1,000 square feet where the lot is less than two acres, 2,000 square feet where the lot is two to five acres, an additional 200 square feet is permitted for each acre over five acres to a maximum of 5,000 square feet. Two stories are permitted if the structure meets the main building setbacks, provided the height does not exceed 24 feet.

2. Additional area, height and story may be permitted by issuance of a minor use permit, not to exceed the limits specified by the applicable regulations.

I. Offices. Offices in conjunction with agricultural, institutional or other nonresidential use. Limited to one story and 12 feet maximum unless greater height is permitted by a minor use permit.

J. Coops.

K. Guest House. A guest house is permitted only as follows:

1. In any residential zone, one detached guest house is permitted on a lot or building site which has an area of not less than 10,000 square feet. Guest houses are not permitted in other zones.

2. The guest house shall have a maximum floor area of 640 square feet, and shall meet the main building setbacks for the residential zone in which the site is located. Guest houses exceeding 640 square feet are permitted upon issuance of a minor use permit. A guest house maintaining building setbacks for detached accessory structures, in conformance with Section 30.16.010E of the Municipal Code, is permitted upon issuance of a minor use permit. A guest house which does not meet setbacks for either main buildings or detached accessory structures is prohibited unless findings for a variance pursuant to Chapter 30.78 are made and a setback reduction variance is granted.

3. No kitchen facilities or laundry facilities are allowed within the guest house.

4. The guest house shall only be occupied on a temporary basis (no more than 30 consecutive days) and shall not be rented or otherwise used as a separate dwelling.

5. Prior to issuance of a building permit for a guest house the owner shall submit a notarized recorded copy of an agreement between the owner and the City of Encinitas on a form supplied by the Department of Community Development. Said agreement shall state that the owner understands and declares that the guest house is only to be occupied on a temporary basis (no more than 30 consecutive days) and will not be rented or otherwise used as a separate dwelling. The agreement shall also include provisions stating that the owner consents to inspection of the premises by the code enforcement officer in order to verify the terms of the agreement.

L. Home Occupations. Home occupations shall be permitted in compliance with the following conditions:

1. There shall be no exterior evidence of the conduct of a home occupation out of character with the normally appropriate appearance of the dwelling.

2. A home occupation shall be conducted entirely within a dwelling, or a garage.

3. Electrical or mechanical equipment which creates visible or audible interference in radio or television receivers or causes fluctuations in line voltage outside the dwelling unit shall be prohibited.

4. Only the residents of the dwelling unit may be engaged in the home occupation except by a temporary minor use permit, exception being cottage food operation.

5. There shall be no on-premises sale of goods not produced on the premises.

6. The establishment and conduct of a home occupation shall not change the principal character or use of the dwelling unit involved.

7. There shall be no signs other than those permitted by this chapter.

8. The required residential off-street parking shall be maintained.

9. A home occupation shall not create vehicular or pedestrian traffic in excess of that which is normal for the zone in which it is located.

10. A cottage food operation, as defined in the California Homemade Food Act, shall comply with California Health and Safety Code Section 113758.

M. Dog and Cat Keeping. The keeping of dogs and cats, but not including kennels.

N. Roadside Sales of Agricultural Products. Operation of a stand, not to exceed an area of 200 square feet, for the display and sale, by the occupant of the premises, of agricultural products produced on the premises. Agricultural products produced off-site may be displayed and sold from the stand. The stand shall not be closer than 15 feet to any street or highway and shall be permitted subject to an agriculture permit.

O. Wild Animal Keeping. The keeping of not more than one wild animal for which a wild animal permit is required and has been issued pursuant to this Code.

P. Earthworms. The raising of earthworms provided that:

1. No sales are advertised or made on the premises unless permitted by the use regulations.

2. Odors and/or fly-breeding are not greater than customarily found at a well-maintained residence.

Q. Retail Sales of Stable Gear. The retail sale of stable gear, provided that such sales are incidental and subordinate to the use of conforming public stables or equestrian facilities on the premises, and there is no exterior advertising of the accessory use. No such accessory use shall occupy more than 10% or not to exceed 1,000 square feet, whichever is less, of the total floor area of enclosed building permitted by right and devoted to such public stable or equestrian facility. Where such public stables or equestrian facilities are permitted by use permit, the total floor area of the accessory use shall be regulated by such permit.

R. Qualified Employee Housing. The Employee Housing Act allows for flexibility in housing types for employee housing, including conventional and nonconventional structures, such as: living quarters, boardinghouse, tent, bunkhouse, mobilehome, manufactured home, recreational vehicle and travel trailers. The laws and regulations governing these structures depends on the housing type; however, all qualified employee housing must comply with: the Employee Housing Act (Health and Safety Code Section 17000 et seq.) and the Employee Housing Regulations (Title 25—Housing and Community Development), which outline specific requirements for the construction of housing, maintenance of grounds, buildings, sleeping space and facilities, sanitation and heating; and the provisions of this section. Qualified employee housing for seven or more employees is a permitted accessory use in conjunction with an approved permitted agricultural use provided that:

1. The number of living units or beds is reasonably related to the number of agricultural employees required for agricultural operations on the parcel on which the qualified employee housing is located, however, should not consist of more than 36 beds in a group quarters or 12 units or spaces designed for use by a single family or household.

2. Qualified employee housing– seven or more employees shall be occupied only by agricultural employees (and the members of the employee's household as permitted by HCD) engaged in agricultural labor and shall not be otherwise occupied or rented.

3. All temporary or permanent structures that contain qualified employee housing shall meet the setback, lot coverage, height, and other development standards applicable to the zone in which it is located.

4. Parking shall be provided in accordance with Section 30.54.030, unless the applicant provides substantial evidence demonstrating that the actual parking need is lower, subject to the approval of the Development Services Director.

5. Qualified employee housing shall comply, as applicable, with the following: (1) Employee Housing Act (California Health and Safety Code Sections 17000—17062); (2) Mobilehome Parks Act (California Health and Safety Code Sections 18200—18700); and Special Occupancy Parks Act (California Health and Safety Code Sections 18860—18874), as may be amended from time to time.

6. Qualified employee housing shall be reviewed and approved subject to the same requirements as other permitted agricultural uses within the same zone.

7. If an existing agriculture use does not have a required permit, a permit for both the agricultural use and qualified employee housing must be obtained.

8. Within 30 days after approval from the City of Encinitas for qualified employee housing, the applicant shall record in the office of the County Registrar-Recorder/County Clerk a covenant running with the land for the benefit of the City of Encinitas, declaring that the qualified employee housing will continuously be maintained as such in accordance with Title 30 of the Encinitas Municipal Code and also that:

a. The applicant shall obtain and maintain, for as long as the qualified employee housing is operated, the appropriate permit(s) from State Department of Housing and Community Development (HCD) pursuant to the Employee Housing Act and the regulations promulgated thereunder;

b. The improvements required by the City of Encinitas related to the qualified employee housing shall be constructed and/or installed, and continuously maintained by the applicant;

c. The applicant shall submit the annual verification form to the Development Services Director as required by this section; and

d. Any violation of the covenant and agreement required by this section shall be subject to the enforcement procedures of Chapter 1.08 of the Encinitas Municipal Code.

9. The property owner shall: (1) complete and submit to the Development Services Director a verification form no later than 30 days after receiving a permit to operate from HCD; (2) a verification form shall be submitted to the Development Services Director annually to ensure compliance with Title 30 of the Encinitas Municipal Code; and (3) the verification form shall include: information regarding the agricultural use, housing type, number of dwelling units or beds, number of occupants, occupants' employment information, and proof that a permit to operate from HCD has been obtained and maintained.

10. Qualified employee housing – seven or more employees shall be removed or converted to another permitted use at such time as the agricultural activity to which it relates ceases operation for more than 12 consecutive months.

Qualified employee housing providing accommodations for six or fewer employees, pursuant to Health and Safety Code Section 17021.5(b), shall be deemed a single-family dwelling and is allowed in residential zones. Qualified employee housing for six or fewer employees is subject to all municipal codes, regulations and other standards generally applicable to other residential dwellings of the same type in the same zone.

S. Horticultural Sales. In all residential and agricultural zones, the retail sale of horticultural and floricultural products and their related gardening items in conjunction with and upon the premises of a growing nursery is permitted upon issuance of a minor use permit.

T. Accessory Dwelling Units, General.

1. Accessory dwelling units shall be a permitted use in all areas zoned to allow single-family or multifamily residential use.

2. One accessory dwelling unit may be permitted in conjunction with an existing or proposed single-family residence on a lot zoned for residential use. Accessory dwelling units meeting the standards of Subsection 30.48.040T.19 are permitted in conjunction with multifamily dwelling units.

3. An accessory dwelling unit may be permitted on a lot with an existing or proposed junior accessory dwelling unit meeting the standards of Section 30.48.040U.

4. Architectural building materials of the accessory dwelling unit shall be compatible with the primary residential structure(s).

5. All development standards contained in the underlying zoning district shall apply to accessory dwelling units unless they are inconsistent with the provisions of this Section 34.48.040T, in which case the standards of this Section 34.48.040T shall apply.

6. An accessory dwelling unit shall not be sold separately from the primary residence or multifamily ownership structure as detailed within the covenant for the accessory dwelling unit.

7. An accessory dwelling unit may be rented, but only with a rental agreement with terms greater than 30 days.

8. Accessory dwelling units shall comply with all applicable local building and fire code requirements.

9. Prior to approval of an accessory dwelling unit on properties with a private sewage system, approval by the County of San Diego Department of Environmental Health, or any successor agency, shall be required.

10. Accessory dwelling units shall not be required to provide fire sprinklers if they are not required for the primary residence.

11. An accessory dwelling unit shall have a separate exterior entrance from that of the primary dwelling unit.

12. An accessory dwelling unit may be constructed above a garage provided that there is no loss of parking provided within the garage.

13. Zoning limits on lot coverage, floor area ratio, open space requirements, and size must permit, or shall be waived, to allow up to an 800 square foot detached or attached accessory dwelling unit, up to 16 feet high, with four-foot side and rear yards, unless the open space is within a recorded easement or protected by the Local Coastal Plan.

14. Unit Size.

a. An attached or detached accessory dwelling unit with a living area of up to 800 square feet, a maximum height of 16-feet, and four-foot side and rear setbacks, is permitted regardless of the living area of the primary dwelling unit.

b. The maximum living area of an attached or detached accessory unit shall not exceed 1,200 square feet or the total living area of the primary dwelling unit, whichever is less.

15. Setbacks.

a. Except as provided in this Section 34.48.040T, accessory dwelling units shall comply with the setbacks required for the primary dwelling unit as established by the underlying zoning designation.

b. Notwithstanding any other provision of this Section 30.48.040T, accessory dwelling units shall comply with the setbacks established in Chapter 30.34 (Special Purpose Overlay Zones) and the sensitive habitat protection policies of the Municipal Code and Local Coastal Program where required to comply with the coastal bluff and inland hillside, sensitive habitat, or scenic views and visual resource protection policies of the Local Coastal Program.

c. Accessory dwelling units may be located within a required street side, interior side, or rear yard setback area provided that such structure is located no closer than four feet to a side or rear lot line unless any of the following are true:

i. The underlying zoning allows for a setback of less than four feet.

ii. An accessory dwelling unit that is constructed above (may be cantilevered or supported by posts, but not solid walls) an existing or proposed attached or detached garage shall have a setback of four feet from the side and rear property lines.

iii. No setback shall be required if the accessory dwelling unit consists of the conversion of existing space wholly within an existing primary residence, or wholly within an existing accessory structure, or is a structure constructed in the same location and to the same dimensions as an existing structure, unless the coastal bluff and inland hillside, sensitive habitat, or scenic views and visual resource protection policies of the Local Coastal Program require a greater setback.

iv. Side and rear setbacks sufficient for fire and safety conditions and regulations shall be required for an accessory dwelling unit constructed within the existing space of an accessory structure except for an expansion of up to 150 square feet to accommodate ingress and egress only, unless the coastal bluff and inland hillside, sensitive habitat, or scenic views and visual resource protection policies of the Local Coastal Program require a greater setback.

v. Accessory dwelling units constructed on properties directly adjacent to a coastal bluff shall comply with the setbacks established by the coastal bluff and inland hillside, sensitive habitat, or scenic views and visual resource protection policies of the Local Coastal Program.

d. Any accessory dwelling unit that is permitted or constructed in reliance on the setback provisions established for accessory dwelling units in Subsection 30.48.040T.15.c shall be maintained as an accessory dwelling unit and shall not be converted to or used for any other purpose.

16. Height.

a. Any accessory dwelling unit in compliance with the required setbacks of the underlying zone shall be permitted to build to the height limit for that zone pursuant to Subsection 30.16.010.B.6 of the Encinitas Municipal Code.

b. An accessory dwelling unit that is constructed above a proposed or existing attached or detached garage shall be permitted to construct to the height regulations of the underlying zone pursuant to Subsection 30.16.010.B.6.

c. Any accessory dwelling unit not constructed above a garage, or wholly within or to the same dimensions as an existing or proposed primary residence or accessory structure, and not in compliance with the required setbacks of the underlying zone shall be permitted to build to a maximum of 16-feet in height, with no projections permitted above the maximum 16-foot height limit. Roof decks shall be permitted provided the design of the roof or deck railings do not extend beyond the maximum 16-foot height limit.

17. Architectural Projections.

a. Architectural features of the accessory dwelling unit including required access stairways, awnings, chimneys, bay windows, window seats, fireplaces, planters, and porches, steps, and decks less than 30 inches above grade, which do not create additional livable area, may project into any yard not more than four feet; however, architectural features shall not be permitted to project into the minimum required four-foot side and rear setback, unless permitted by the underlying zoning.

b. Roof eaves for the accessory dwelling unit shall be permitted to project a maximum of two feet into the minimum required four-foot street side, interior side, and rear yard setback.

18. Parking.

a. Except as otherwise provided herein, parking spaces for accessory dwelling units shall comply with Chapter 30.54 (Off-Street Parking) of the Municipal Code, including, but not limited to, the design requirements of the Off-Street Parking Design Manual.

b. One parking space shall be required for an accessory dwelling unit, which may be provided as tandem parking on an existing driveway or within setback areas, provided that the parking area is properly surfaced in accordance with applicable regulations.

c. Any required parking spaces removed in conjunction with the construction of an accessory dwelling unit shall be replaced on the same lot as the accessory dwelling unit.

i. The replacement parking spaces may be located in any configuration on the lot, including, but not limited to, as covered spaces, uncovered spaces, or tandem spaces, or by the use of mechanical automobile parking lifts.

ii. Uncovered replacement parking spaces may be located within building setback areas.

iii. Structures for covered parking spaces shall be required to comply with applicable setbacks.

d. Notwithstanding the above or any other law, no parking standards shall be imposed for an accessory dwelling unit in any of the following instances:

i. The accessory dwelling unit is located within a radius of one-half mile of public transit.

ii. The accessory dwelling unit is located within an architecturally and historically significant historic district.

iii. The accessory dwelling unit is contained wholly within the existing space of an existing primary residence or an existing accessory building, with no additional area added. If an accessory dwelling unit constructed under this provision is expanded, parking shall be provided for the accessory dwelling unit in accordance with this section.

iv. When on-street parking permits are required but not offered to the occupant of the accessory dwelling unit.

v. When there is a car share facility located within one block of the accessory dwelling unit.

19. Multifamily Dwelling Structures.

a. Accessory dwelling units are permitted within any portions of an existing multifamily dwelling structure in space currently not being used as livable space, including, but not limited to, storage rooms, boiler rooms, passageways, attics, basements, crawlspaces, or garages, if each unit complies with state building standards for dwellings. The number of accessory dwelling units permitted under this subsection is equivalent to up to 25% of the existing units in the building or one, whichever is greater. In determining the maximum number of accessory dwelling units allowed, any fraction of an accessory dwelling unit shall be rounded down to the next whole number not less than one.

b. Not more than two detached accessory dwelling units may be constructed on a lot that has an existing multifamily dwelling, subject to a height limit of 16 feet and four-foot interior side and rear yard setbacks. Any accessory dwelling unit in compliance with the required setbacks of the underlying zone shall be permitted to build to the height limit for that zone pursuant to Subsection 30.16.010.B.6 of the Encinitas Municipal Code.

20. Utilities.

a. Accessory dwelling units shall not be considered new residential uses for the purposes of calculating connection fees or capacity charges for utilities, including water and sewer service, unless the accessory dwelling unit is constructed with a new single-family dwelling. Any fees related to utilities shall be proportional to the burden of the accessory dwelling unit on the water or sewer system, based upon either its size in square feet or fixture units.

b. For an accessory dwelling unit that is contained within the existing space of a single-family residence or accessory building, including up to 150 square foot expansion of the accessory building to accommodate egress and ingress, that has independent exterior access from the existing residence and the side and rear setbacks are sufficient for fire safety, no new or separate utility connection directly between the accessory dwelling unit and the utility shall be required and no related connection fee or capacity charge shall be imposed. For accessory units that do not meet these criteria, new or separate utility connections may be required, and related connection fees or capacity charges may be imposed.

c. Accessory dwelling units shall be exempt from the requirements of undergrounding overhead utilities and public right-of-way dedication and improvements.

21. Applications. Except for required coastal development permits, applications for accessory dwelling units on a lot with an existing single-family residence or multifamily dwelling units that conform to the requirements of this section shall be considered as ministerial permits without discretionary review or a hearing, and the City shall approve or deny such applications within 60 calendar days after receiving the completed application. If the permit application to create an accessory dwelling unit is submitted with a permit application to create a new single-family dwelling on the lot, the permitting agency may delay acting on the permit application for the accessory dwelling unit until the permitting agency acts on the permit application to create the new single-family dwelling, but the application to create the accessory dwelling unit shall still be considered as a ministerial permit without discretionary review or a hearing. If the application requests a delay, the 60-day time period shall be tolled for the period of the delay.

Coastal Development Permits. Accessory dwelling units and junior accessory dwelling units that are not completely contained in the existing primary structure, or include increases in habitable area, or include conversion of non-habitable space, are considered self-contained residential units and require a coastal development permit or administrative coastal development permit. The City shall approve or deny coastal development permit applications within 60 calendar days after receiving the completed application to the extent feasible.

22. Fees. Development Service Department fees for accessory dwelling units may be waived. Any impact fees shall not be imposed upon the development of an accessory dwelling unit less than 750 square feet. Any impact fees charged for an accessory dwelling unit of 750 square feet or more shall be charged proportionately in relation to the square footage of the primary dwelling unit.

23. Nonconforming. The City shall not require, as a condition for ministerial approval of a permit application for the creation of an accessory dwelling unit or a junior accessory dwelling unit, the correction of legal nonconforming zoning conditions, except as provided for nonconforming detached accessory structures under Subsection 30.76.120A.1.d.

24. Covenants.

a. Prior to issuance of a building permit for an accessory dwelling unit, a covenant shall be recorded between the owner and the City of Encinitas agreeing to the terms stipulated in this chapter. The covenant shall specifically mention that:

i. The accessory dwelling unit shall not be sold separately from the primary dwelling unit or multifamily ownership structure as detailed within the covenant for the accessory dwelling unit.

ii. The accessory unit may be rented, but only with rental agreements with terms greater than 30 days.

iii. The accessory unit is limited to the size and attributes set forth by this section.

iv. The covenant shall be binding upon any successors in interest or ownership of the property and lack of compliance with the provisions thereof may result in legal action against the property owner, including revocation of the right to maintain an accessory dwelling unit on the property.

25. In cases of conflict between this Subsection 30.48.040T and any other provision of this title, the provisions of this subsection shall prevail. To the extent that any provision of this subsection conflicts with state law, the applicable provision of state law shall control, but all other provisions of this chapter shall remain in full force and effect.

26. Definitions. The definitions found in Government Code Section 65852.2 Accessory Dwelling Units, as amended, and the following definitions shall apply to the terms contained in this section.

"Accessory dwelling unit"

shall be as defined in Chapter 30.04 of this title.

"Car share facility"

shall mean a City permitted designated area where a car share vehicle can be parked for extended periods of time.

"Existing space"

shall mean an enclosed area within the existing exterior walls and existing roofline of an existing structure that can be made safely habitable under applicable building and fire codes at the determination of the building official, notwithstanding any noncompliance with zoning regulations.

"Living area"

shall mean the interior habitable area of a dwelling unit including basements and attics, but does not include a garage or any accessory structure.

U. Junior Accessory Dwelling Units.

1. One junior accessory dwelling unit may be permitted in conjunction with a proposed or existing single-family residence on lots zoned for single-family or multifamily use.

2. A junior accessory dwelling unit may be permitted within a single-family residence on a lot with an existing or proposed accessory dwelling unit conforming with Subsection 34.48.040T.

3. A junior accessory dwelling unit shall not be sold separately from the primary residence.

4. A junior accessory dwelling unit may be rented, but only with a rental agreement with terms greater than 30 days.

5. The owner of a lot with a junior accessory dwelling unit shall occupy as a principal residence either the primary dwelling or the junior accessory dwelling unit or, if applicable, the accessory dwelling unit, except where the primary dwelling and junior accessory dwelling are held by a governmental agency, a land trust or housing organization in an effort to create affordable housing.

6. Development Standards.

a. A junior accessory dwelling unit shall not exceed 500 square feet in total floor area.

b. A junior accessory dwelling unit shall be contained entirely within the walls of a proposed or existing single-family residence.

c. A junior accessory dwelling unit shall be provided with a separate exterior entry from that of the primary dwelling.

d. A junior accessory dwelling unit shall include an efficiency kitchen, which shall include the following:

i. A cooking facility with appliances.

ii. A food preparation counter and storage cabinets that are reasonable to the size of the unit.

e. No additional parking shall be required for a junior accessory dwelling unit.

f. Access to a bathroom is required, which may be part of the junior accessory dwelling unit or located in the existing primary dwelling. If provided as part of the primary dwelling, the junior accessory dwelling unit shall have direct access to the main living area of the primary dwelling so as to not need to go outside to access a bathroom.

7. Except as provided herein, a junior accessory dwelling unit shall comply with all local building and fire code requirements, as appropriate.

8. Junior accessory dwelling units shall not be required to provide fire sprinklers or fire attenuation specifications if they are not required for the primary residence.

9. No sewer or water connection fees shall be required for the development of a junior accessory dwelling unit.

10. Prior to issuance of a building permit for a junior accessory dwelling unit, a covenant shall be recorded between the owner and the City of Encinitas agreeing to the terms stipulated in this chapter. The covenant shall specifically mention that:

a. The junior accessory dwelling unit shall not be sold separately from the primary dwelling unit.

b. The junior accessory unit may be rented, but only with a rental agreement with terms greater than 30 days.

c. The junior accessory unit is limited to the size and attributes set forth by this section.

d. The owner of record of the property shall occupy the primary dwelling unit or the junior accessory dwelling unit or, if applicable, the accessory dwelling unit, except where the primary dwelling and junior accessory dwelling are held by a governmental agency, land trust or housing organization in an effort to create affordable housing.

e. The covenant shall be binding upon any successors in interest or ownership of the property and lack of compliance with the provisions thereof may result in legal action against the property owner, including revocation of the right to maintain a junior accessory dwelling unit on the property.

11. Applications for junior accessory dwelling units conforming to the requirements of this section shall be considered as ministerial permits, without discretionary review or a hearing, and the City shall approve or deny such applications within 60 calendar days after receiving the completed application. If the permit application to create a junior accessory dwelling unit is submitted with a permit application to create a new single-family dwelling on the lot, the permitting agency may delay acting on the permit application for the junior accessory dwelling unit until the permitting agency acts on the permit application to create the new single-family dwelling, but the application to create the junior accessory dwelling unit shall still be considered ministerial, without discretionary review or a hearing. If the applicant requests a delay, the 60-day time period shall be tolled for the period of the delay.

12. Impact fees shall not be imposed upon the development of a junior accessory dwelling unit.

13. Junior accessory dwelling units shall be exempt from the requirements of undergrounding overhead utilities and public right-of-way dedication and improvements.

14. In cases of conflict between this Subsection 30.48.040U and any other provision of this title, the provisions of this subsection shall prevail. To the extent that any provision of this subsection is in conflict with state law, the applicable provision of state law shall control, but all other provisions of this chapter shall remain in full force and effect.

V. Family Day Care Homes, Small and Large. Small and large family day care homes are permitted by right as accessory uses in all residential zones.

W. Wind Turbine Systems, Small. A wind turbine system, small shall be permitted on a building site in compliance with the following conditions:

1. Setback. The system shall be set back from property lines and roads at least two times the height of the wind system (to the top of the blade in vertical position).

2. Fencing. Public access to the wind turbines shall be restricted through the use of a fence with locked gates, non-climbable towers or other suitable methods.

3. Signs. Suitable warning signs containing a telephone number for emergency calls shall face all approaches to the system. Individual signs shall be between five and 16 square feet.

4. Noise. The wind turbine shall be operated in such manner that it does not exceed the sound level limits of the Municipal Code.

X. Bed and Breakfast Home. A bed and breakfast home is a permitted accessory use upon issuance of a minor use permit provided the following conditions are complied with:

1. Located in a residential zone or in a designated Historic building, or conducted within a structure which was constructed prior to 1936.

2. A maximum of five bedrooms shall be made available for rent. A bed and breakfast home having more than five bedrooms available for rent may be approved if the home is designated a Historic Landmark in accordance with the Historic Landmark Designation.

3. No bed and breakfast home shall be located on a lot closer than 200 feet from any other lot containing a bed and breakfast home. The 200-foot distance shall be measured in a straight line connecting the closest points on the lot lines and without regard for intervening structures.

4. The owner or lessee of the property shall operate the facility and reside in the home.

5. One off-street parking space for each room rented and each employee shall be provided in addition to the parking required for single-family occupancy.

6. Service shall be limited to the rental of rooms and the provision of breakfast for overnight guests. No food preparation or cooking guests shall be conducted within any bedroom made available for rent.

7. Signs shall be limited to one on-premises sign not to exceed two square feet.

Y. Accessory uses shall be permitted for horticultural uses provided the buildings to house said use do not exceed 10% of the net area (or 8,000 square feet whichever is less) of the lot that the primary horticulture use is located. Such accessory uses include: offices, storage (subject to subsection H), packing, assemblage, distribution, maintenance, related grading (soil mixtures), and the like.

Z. Other Necessary and Customary Uses. Accessory uses and structures, in addition to those identified above, which are necessarily and customarily associated with, and are appropriate, incidental, and subordinate to principal use, as determined by the Director.

AA. Temporary Food Stand. Temporary food stands for sale of agricultural products or cottage foods as defined by state law by the resident(s) are permitted as an activity of limited duration (12 hours a week during daylight hours) and may involve the placement of non-permanent structures (e.g., portable furniture) not exceeding a maximum of 120 square feet in sale/display area. Structures shall not create a nuisance, obstruction or hazard and shall not displace required parking for other uses on the site.

(Ord. 88-06; Ord. 89-41; Ord. 90-08; Ord. 92-28; Ord. 92-30; Ord. 93-07; Ord. 94-11; Ord. 97-17; Ord. 2006-06; Ord. 2015-01; Ord. 2016-08; Ord. 2017-03; Ord. 2018-01; Ord. 2018-02; Ord. 2018-11; Ord. 2019-14; Ord. 2020-10; Ord. 2022-03; Ord. 2022-11)

§ 30.48.050 Commercial Use Types.

Subject to the restrictions and limitations specified, the following accessory buildings and uses shall be permitted in commercial zones:

A. Sidewalk Cafés/Outdoor Cafés. Sidewalk cafés/outdoor cafés shall be a permitted accessory use provided the following conditions are complied with:

1. The sidewalk/outdoor café shall be conducted accessory to a legally established food and beverage retail sales or eating and drinking establishment use type and clearly shown on a plot plan prepared to the satisfaction of the Planning and Building Director.

2. An encroachment permit for a sidewalk café is issued by the Department of Public Works when the sidewalk is within public rights-of-way.

3. The operation of a sidewalk/outdoor café shall meet applicable requirements of the Department of Health Services.

4. Contiguous property owners shall be notified in accordance with Chapter 30.01 if the sidewalk/outdoor café is within public rights-of-way or in a commercial complex of five or fewer tenants. If the sidewalk/outdoor café is in a commercial complex of six or more tenants, then the remaining tenants in the commercial complex shall be notified in accordance with Chapter 30.01, provided that the notification shall only include the tenants in the commercial complex where the proposed sidewalk/outdoor café is to be located.

5. The hours of operation of the sidewalk/outdoor café shall be limited to the hours of operation of the associated eating or drinking establishment.

6. No sound amplification device, musical instrument or sound reproduction device shall be operated or used with a sidewalk/outdoor café and any outdoor lighting shall comply with performance standards.

7. A finding shall be made that the sidewalk/outdoor café will not adversely affect the neighborhood nor be detrimental to persons residing, visiting or working in the area.

8. The area of the sidewalk/outdoor café and the area of the restaurant shall be used in determining the parking requirements of the primary restaurant use. A sidewalk/outdoor café added to an existing restaurant shall adhere to the parking standards for restaurants contained within Chapter 30.54 of the Municipal Code or applicable specific plan. The area of the sidewalk/outdoor café shall not remove any required parking areas and the café area shall not block access to the property or surrounding areas. The area for pedestrian access must remain at least 42 inches in width. Café equipment is not to extend beyond the width of the building where the business is located, nor more than five feet from the face of the building unless a finding is made by the Director of Planning and Building that additional area is available for the café.

9. The sidewalk/outdoor café must be reviewed by and found to meet the standards of the Encinitas Fire Marshal relative to access and flammability.

10. All other appropriate provisions of the Municipal Code, including sign regulations, must be met.

B. Outdoor Displays of Merchandise. The outdoor display of merchandise as accessory to a legally established retail or wholesale business is permitted subject to the following limitations:

1. An encroachment permit for outdoor displays of merchandise is issued by the Department of Public Works when the display area is within the public rights-of-way.

2. Contiguous property owners shall be notified in accordance with Chapter 30.01 if the outdoor display of merchandise is within the public rights-of-way or in a commercial complex of five or fewer tenants. If the outdoor display area is in a commercial complex of six or more tenants, then the remaining tenants in the commercial complex shall be notified in accordance with Chapter 30.01, provided that the notification shall only include the tenants in the commercial complex where the proposed outdoor display of merchandise is to be located.

3. The outdoor display of merchandise shall be limited to the hours of operation of the associated retail or wholesale establishment.

4. No sound amplification device, musical instrument or sound reproduction device shall be operated or used with the outdoor display of merchandise and any outdoor lighting shall comply with performance standards.

5. A finding shall be made that the outdoor display of merchandise will not adversely affect the neighborhood nor be detrimental to persons residing, visiting or working in the area.

6. The area of the outdoor display of merchandise shall not remove any required parking areas and the display area shall not block access to the property or surrounding areas. The area for pedestrian access must remain at least 42 inches in width. Merchandise is not to extend beyond the width of the building where the business is located, nor more than five feet from the face of the building unless a finding is made by the Director of Planning and Building that additional area is available for the display of merchandise.

7. The outdoor display area and types of merchandise must be reviewed by and found to meet the standards of the Encinitas Fire Marshal relative to access and flammability.

8. All other appropriate provisions of the Municipal Code, including sign regulations, must be met.

C. Caretaker's Dwelling Unit. Pursuant to Chapter 30.09, one dwelling unit is permitted, accessory to the principal use(s) on site, to serve as the residence of a caretaker or superintendent (and family) for the establishment(s) on the property. A caretaker's dwelling unit is limited to 750 square feet or 30% of the floor area of the principal structure(s) on the property, whichever is less, with a minimum of 400 square feet allowed by right. Additional floor area over 750 square feet or 30% of the floor area of the principal structure may be allowed with the approval of a minor use permit. A covenant, in form and content acceptable to the Planning and Building Director, shall be recorded to assure that the caretaker's unit is not otherwise rented or expanded beyond the limitations set forth in this section.

(Ord. 94-11; Ord. 2003-08; Ord. 2014-12)

§ 30.48.060 Light Industrial.

Single-family dwellings or a single mobilehome limited to 750 square feet or 30% of the floor area of the principal structure(s) on the property, whichever is less, with a minimum of 400 square feet allowed by right (additional floor area over 750 square feet or 30% of the floor area of the principal structure may be allowed with the approval of a minor use permit) shall be permitted as follows in the Light Industrial Zone subject to the following:

A. Caretaker or Superintendent. On a lot or building site with a permitted industrial use, and occupied exclusively by a caretaker or superintendent (and family) of such industrial use; or

B. Farm Owner or Operator. On a lot or building site having a net area of at least five acres which is being farmed, and occupied exclusively by the owner or operator thereof; or

C. Kennel Owner or Operator. On a lot or building site with a kennel, and occupied exclusively by the owner or operator thereof and family.

(Ord. 97-17; Ord. 2015-01)

§ 30.48.070 Retail Sales in the Light Industrial Zone.

Retail sales as an accessory use is permitted in the light industrial zone when the product sold is produced on the site.

(Ord. 2015-01)