There is a crisis in the availability of affordable housing in our communities while vacant commercial spaces are staying vacant and growing.
California is mandating that municipalities and counties work towards creating more (affordable) housing. For example, unincorporated Marin needs to plan for 3,569 more housing units in the next few years. One might be surprised to learn that “Moderate Income” inMarin are households with incomes between $146,351 and $179,500.
As part of this mandate, California has also implemented laws requiring that ADUs (accessory dwelling units) are allowed by these same municipalities. No longer can they delay approvals or make stipulations that would inhibit ADUs from being built.
One area that is still, seemingly, up to debate, is that although the 2020 ADU law decrees that municipalities permit the introduction of ADUs within existing"multifamily residential structures," some municipalities believe there’s a loophole and are pushing back. California law requires a limited number ofADUs be approved in "multiple accessory dwelling units within the portions…that are not used as livable space, including, but not limited to, storage rooms ,boiler rooms passageways, attics, basements, or garages, if each unit complies with state building standards for dwellings."
It would seem clear that vacant retail space within an existing multifamily dwelling structure would qualify, just like the basement.
A leading California law firm, Holland & Knight, wrote, “Vacant retail space within an existing multifamily dwelling structure would qualify since the vacant retail space would be located within an existing multifamily dwelling structure... [they] may be particularly well suited for livable spaces given light, air, entrances and other characteristics intended to make retail spaces enjoyable
Holland&Knight further speculate, “This legislation…can [help] convert vacant or poorly performing retail into a much more economically feasible use that also would help with California's existing housing shortage. With creative designs that might include porches, stoops, landscaping and windows, owners of mixed-use projects with struggling or vacant retail may unexpectedly provide new, much needed housing and even give a modicum of joy to urban planners and city administrators by actually activating the ground floor.”
And this seems to be a happy development-- a win to those looking for affordable housing, a win in revitalizing our downtowns (currently there are 99 vacant office/retail spaces advertised in San Rafael, and some have been unoccupied for more than two years), and a win to elected and employed municipal leaders; but this is not how it’s playing out. Some municipalities are pushing back--wanting to block ground level housing. Their argument is that the ground level retail/office space is not part of the multi-family dwelling building, although a basement, garage and even boiler room passageways are. And since the law called out garage spaces, but not vacant office space, they contend the municipality does not need to allow it. It appears they believe vacant commercial spaces best need to stay that way or wait for office spaces to comeback in demand.
It seems clearly a lose-lose-lose interpretation of the intent of the law. If this (mis) interpretation is not changed, our downtowns will remain filled with vacant office/retail spaces, property owners will continue to have no incentive to revitalize their properties (conversion to residential is as or more profitable than commercial has been), and desirable locations for affordable housing will be lost while our downtowns languish.
We can do better.