The State Of California Moves To Allow Accessory Dwelling Units (ADU) On Almost Every Residential Property

For a long time, there has been significant discussion on how to increase the number, and affordability, of housing in California. Despite the relatively universal acknowledgment that action must be taken, even before COVID housing starts were not meeting the minimum number of units we needed, and affordability continued to be a major challenge. However, one effort which the State of California has undertaken is to facilitate the ability for each residential property to have an Accessory Dwelling Unit (ADU) on its property. This has been done primarily by enacting new state laws which usurp local Cities and Counties’ ability to manage and restrict ADUs.

The State of California took its first steps to promote ADU with a series of laws passed by the California State Legislature in 2017. SB 1069 (Wieckowski), AB 2299 (Bloom), and AB 2406 (Thurmond) - made the creation of ADUs easier. One of the most important aspects of these laws were to eliminate the requirement for additional parking for ADUs (provided the site is within a mile of public transit) and limiting local government control over new ADUs.

In 2019 significant new ADU legislation passed and have become law as of January 1, 2020. These laws include Assembly Bill 881, Assembly Bill AB 670, Senate Bill 13, and Assembly Bill 68.

Assembly Bills 68 and 881

AB 68 and 881, introduced by Assembly members Ting, and Bloom, have significant overlap and reformed many aspects of the state ADU law. Because of this overlap, they were consolidated and enacted as one bill. The goal of these bills was to remove many of the barriers to ADU development that were still allowed in local zoning ordinances.

These bills:

• Prohibit minimum lot size requirements which were used by local governments to limit ADU development.
• Cap setback requirements at 4 feet, opening a vast amount of space for ADU development in backyards. Rear yard setbacks affecting ADUs of 25 to 30 feet are very common in single-family neighborhoods throughout the state; such generous mandatory yards can be quite pleasant while also not competing with an ADU for space.
• Prohibit the application of lot coverage, floor area ratio, or open space regulations that would prevent an 800 square foot ADU from being developed on the lot. This would guarantee a homeowner’s right to add an ADU on nearly every single-family lot in California.
• Prohibit replacement parking requirements when an existing garage is converted to an ADU. Requiring replacement parking can make it infeasible to develop an ADU on smaller lots, especially if the replacement parking needs to be covered. Many garage conversions come about because the homeowner no longer needs or wants the parking in their garage.
• Limit local discretion in establishing minimum and maximum unit size requirements, guaranteeing at least an 850 square foot unit ADU, or 1000 square feet for an ADU with more than one bedroom.
• Shorten the time period for consideration of ADU permit applications to 60 days, through a non-discretionary process.
• Require that cities reconsider their ADU ordinance if the Department of Housing and Community Development finds the ordinance out of compliance with state law.

In addition, one of the most far reaching requirements is that local government must give administrative approval removing the ability of local jurisdictions from having land use discretion in approving ADU units if the units meet the state requirements.

Senate Bill 13

This bill, authored by Senator Wieckowski, dealt most significantly with prohibiting local government requirements that either the single-family home or ADU had to be owner occupied. This law removed this prohibition for five years, which could be extended if the Legislature decides to do so. This can apply to new development as well as existing single-family homes. This firm is involved with several developments where local government is allowing subdivision with each lot having an ADU and both the single-family home and ADU being allowed to be rented. Upon approval, these projects will be exempted from any future change regarding the ability to rent both units and will be considered by the local jurisdictions and Pre-Existing Legal Non-Conforming Uses. This can provide additional more affordable units while giving the potential future purchaser of a lot a revenue stream from the ADU on their property.

In addition, this bill significantly reduced the impact fees of and ADU, especially under 750 square feet.

Assembly Bill 670

Assembly member Friedman sponsored this bill preventing homeowners’ associations from barring ADUs. Many single-family neighborhoods in California were constructed as common-interest developments which often come with a set of property restrictions put in place when the property was originally subdivided and developed. These restrictions, enforced by the local homeowners’ associations, often limit each lot to a single unit of housing, prohibiting ADU development. This bill would make such restrictions unenforceable and allow for ADU development in these areas if they were found to be unreasonable.

Senate Bill 330

This bill authored by Senator Nany Skinner and signed by Governor Newsom is called the Housing Crisis Act of 2019. It is designed to speed up housing construction in California during the next 5 years by decreasing the time it talks to obtain building permits, limiting the fee increases on housing applications and barring local government from reducing the number of homes that can be built. Its emphasis is building more housing which contemplates will provide more affordable housing.

SB 330 received bipartisan support in the Legislature and sunsets in 2025. The premise of SB 330 is that much of the housing has been approved in concept by local government through their existing zoning rules, housing elements and other plans. A 2019 study found that there is zoning for 2.8 million units in California which have not yet been built. In 2019 building permits were down from 2018. Other studies have shown that the two major causes of lack of building are the fees from local government on housing projects and the lengthy delays after submitting permit applications. While construction has been considered an essential business under COVID, construction is still down.

SB 330 attempts to address these problems by requiring until 2025 that local government significantly decrease the time it takes to process permits for housing that complies with its local rules and caps public hearings at a total of five. Local government is also prohibited from increasing fees or changing permit requirements along with changing building design standards, downzoning a property, establishing a population cap or enacting new housing moratoriums. This law also bans the demolition of affordable and rent-controlled units unless developers replace all of them, pay to rehouse tenants and offer those renters first right of return at the same rental rate.

This bill is not specifically an enhancement of ADU units, but if successful will decrease the time and cost of approving housing projects.

We will see in the next several years whether these new laws will increase housing and its affordability. We believe the removal of restrictions on ADUs can provide some important opportunity for new development. I would urge those of you who want more detailed information to obtain a copy of the January 10, 2020 Memorandum from the California Department of Housing and Community Development which has a more detailed analysis of the 2019 bills which became law on January 1, 2020. We can provide a copy to you if you contact our office.