Entering a new decade, California is primed to implement several bills signed into law at the end of 2019 that seem poised to turbocharge the trend of making accessory dwelling units (“ADUs”) less expensive, easier to get approved, and much more common in the Golden State. Despite these salutary efforts, however, obstacles to the successful implementation of these laws still remain, in the form of ongoing local animosity towards the additional density created by these structures. While the future is unclear, it is likely that such policies will continue to face headwinds from local jurisdictions protecting their turf.
This wave of new legislation perpetuates an effort that began under Governor Jerry Brown starting in 2016 and continued at brisk, steady pace for some time thereafter as previously noted in my blog. During this period, it was not unusual to read articles with headlines like “California ADU Applications Skyrocket After Regulatory Reform” in our daily newsfeeds. While this legislation made ADUs legal throughout the state and outlined a path to legal conformance for such structures that were built illegally, however, local jurisdictions were left with the task of enacting ordinances to implement these new requirements.
As a result, many municipalities thwarted the construction of ADUs by such methods as refusing to allow garage conversions because they were not specifically addressed in the statute, creating onerous “impact” fee schedules that made projects unaffordable, adding oppressive parking requirements to ADU projects, imposing owner occupancy requirements of up to five years on ADUs, and generally burdening ADU applicants with hearings and project reviews. Clearly, local residents—and by extension, local government—were loath to give up control over the development of this type of housing.
In response to these limitations on ADU expansion, the state legislature during its most recent session enacted, and the governor thereupon signed, several statutes that were designed to constrain local authorities’ efforts to countermand these activities. Several of these new laws are discussed below.
Shortened approvals and less red tape
AB 68 and AB 881 require all ADU applications to be acted on within 60 days of filing. In addition, the municipality is not allowed to consider the merits of the design or its environmental impact. Instead, an ADU project will only subject to ministerial approval; this means that the project will not be subject to discretionary review or hearings, but rather will simply be a straightforward transaction in the municipal development center, just like a building permit application.
Further, these laws establish statewide minimum lot size requirements, and impose uniform maximum ADU dimensions. These laws also allow for “junior” ADUs where certain access, setback and other criteria are met. Garage conversions are also now specifically allowed.
The complete text of AB 68 may be found here, and the complete text of AB 881 may be found here.
Ban on owner-occupancy requirements and limits on fees
SB 13 mandates that local jurisdictions may not require an owner-applicant to reside in either the primary dwelling or the ADU. This provision is scheduled to sunset in 2025 unless renewed. In addition, this legislation creates a tiered fee structure that charges ADUs based on their size and location, a fairer approach than had been imposed by many jurisdictions; for example, there are no impact fees on ADUs smaller than 750 square feet.
The complete text of SB 13 may be found here.
HOA restrictions and other legislation
AB 670, which applies to planned developments, bars HOAs from prohibiting ADUs. Specifically, this new law makes unlawful any HOA condition that unreasonably restricts the construction of ADUs and junior ADUs on single-family residential lots. For purposes of this statute, an HOA condition is deemed to be unreasonably restrictive if it unreasonably increases the cost and effectively prohibits the construction of an ADU or a junior ADU.
According to the Community Associations Institute, a national trade group, over 9 million Californians live in residences governed by homeowners associations. Given this fact, of all the new ADU laws going into effect this year, AB 670 may have the broadest impact statewide.
The complete text of AB 670 may be found here.
In addition to AB 670, there are other laws becoming effective January 1, 2020, that may also have some impact on the development of ADUs in California, most notably AB 587 and AB 671. AB 587 will make it possible for a nonprofit organization serving low-income families to sell or convey an ADU located on its property separately from the primary residence under certain limited conditions. AB 671 will require local governments to include in their General Plan housing elements plans to promote the creation of ADUs as affordable housing.
The complete text of AB 587 may be found here, and the complete text of AB 671 may be found here.
Impact of the new ADU push
As with earlier efforts to encourage the development of ADUs statewide, these new laws require local jurisdictions to bring their ordinances into compliance with these mandates as of their effective date. In contrast with prior California ADU legislation, however, these new statutes have more teeth when it comes to dealing with the failure of local laws to comply with their requirements.
In particular, prior statutory reform efforts placed most of the burden of enforcing compliance with state ADU requirements on the developer. The current legislation, however, provides the state with additional tools to require cities and counties to make their ordinances conform to state law. This shift should help property owners avoid being forced to sue their cities to follow state law, as many have unfortunately had to do. Still, I would not expect cities and counties to simply roll over in the wake of these laws, so I would be prepared to continue to see litigation over ADUs in the future.