In 2017, legislation was passed, making accessory dwelling units legal in California. However, strict permitting regulations previously made accessory dwelling units difficult and expensive to construct. Recently, a number of bills were passed, making the process to construct accessory dwelling units easier and more affordable.
Effective January 1, 2020, an association’s governing documents may not prohibit or unreasonably restrict the construction or use of an accessory dwelling unit. Specifically, Assembly Bill 670 (AB 670) voids any provision of an association’s covenants, conditions and restrictions or rules and regulations that prohibit the construction of an accessory dwelling unit on a lot zoned for single-family residential use.
The California Legislature passed this bill in response to California’s affordable housing shortage. AB 670 is intended to encourage owners to convert and/or construct additional living spaces within their property by removing the many obstacles that previously hindered the process of building accessory dwelling units. The Legislature did so by reducing permitting fees, minimizing setback and lot size requirements, and eliminating parking requirements.
While associations may not effectively prohibit accessory dwelling units, they are permitted to adopt “reasonable restrictions”, which is defined to mean restrictions that do not unreasonably increase the cost to construct, effectively prohibit the construction of, or extinguish the ability to otherwise construct, an accessory dwelling unit or junior accessory dwelling unit.
An “Accessory Dwelling Unit” (ADU) means an attached or a detached residential dwelling unit that provides complete independent living facilities for one or more persons and is located on a lot with a proposed or existing primary residence. It also includes permanent provisions for living, sleeping, eating, cooking, and sanitation on the same parcel as the single-family or multifamily dwelling is situated. A “Junior Accessory Dwelling Unit” (JADU) is a unit that is no more than 500 square feet in size and contained entirely within a single-family residence. A JADU can include separate sanitation facilities or may share sanitation facilities with the existing structure.
In addition to AB 670, a number of companion bills were passed to promote the construction of ADUs. Among others, Assembly Bill 881 requires local agencies to expedite the approval process for an ADU. Specifically, the law states that a local agency must act within sixty (60) days from the date the application is received, amending the Government Code from the prior one hundred twenty (120) day requirement. The following are various other bills the Legislature passed which support and facilitate the construction of ADUs:
- Assembly Bill 68 – Reduces ADU approval requirements
- Assembly Bill 587 – Provides an exemption that would permit nonprofit corporations to sell or convey an ADU separately from the primary residence so long as strict guidelines are followed
- Assembly Bill 671 – Expedites the approval process and provides for financial incentives related to the construction of ADUs
- Senate Bill 13 – Significantly reduces time for processing ADU applications
As you can see, these new laws will create many significant issues within planned unit developments. As the number of ADUs in a community increase, so will parking problems and the use of amenities within the community. For example, the law provides that if a garage or parking structure is converted to an ADU or JADU, local agencies cannot require those off-street parking spaces to be replaced. Further, the law allows owners to park in setback locations and in driveways. Ultimately, this may result in an increased number of vehicles parked on streets and in driveways.
Fortunately, the new law does provide that the local agency shall require the property to be rented for a term longer than 30 days, protecting communities from excess use and the nuisances associated with transient tenancy, i.e., short-term rentals. The unanswered question, however, is whether this requirement applies to accessory dwelling units constructed before January 1, 2020, the date AB 670 starts.
In light of these new laws, and the technicalities imposed by same, associations, through their boards of directors, should consult with legal counsel to consider amending existing architectural guidelines to include reasonable restrictions specifically addressing the construction of accessory dwelling units. Of course, every community has unique differences; therefore, architectural guidelines should be carefully drafted to ensure they address the needs of the community, taking into consideration aesthetics and privacy, and are reasonable and enforceable. Boards should also consult with legal counsel to review the association’s governing documents and determine whether any provisions are rendered unenforceable by the new laws and adopt customized architectural guidelines to govern the construction of accessory dwelling units. Without rules addressing accessory dwelling units, the neighborhood facilities and aesthetics may be significantly impacted.