The State Wants More In-Law Units: New Policies Favor Accessory Dwelling Units to Combat the Housing Shortage

In 2016 and 2017, the California Legislature enacted a set of reform bills aimed at reducing local restrictions on the building of second units such as in-law units, basement apartments, garage conversions and backyard cottages.  First, state legislation that took effect January 1, 2017 passed as Senate Bill 1069 (Wieckowski) and Assembly Bill 2299 (Bloom), amended state law governing second units and renamed them “accessory dwelling units” or ADUs.  These two bills, now codified in Government Code §65852.2 et seq., encourage local governments to enact their own ordinances allowing and regulating ADUs.  In passing this new legislation, the Legislature expressed its concern that California is facing a severe housing crisis which can be addressed, at least in part, by promoting ADUs as a valuable form of housing:

“[i]t is the intent of the Legislature that an accessory dwelling unit ordinance adopted by a local agency has the effect of providing for the creation of accessory dwelling units and that provisions in this ordinance relating to matters including unit size, parking, fees, and other requirements, are not so arbitrary, excessive, or burdensome so as to unreasonably restrict the ability of homeowners to create accessory dwelling units in zones in which they are authorized by local ordinance.”  Government Code §65852.150(b).

Under the new statutory scheme, homeowners who create ADUs in residential zones benefit from relaxed standards for parking requirements, utility connections, fees, lot density, unit size relative to the existing home, and building permits for ADUs.  An “accessory dwelling unit” is broadly defined as a detached or attached dwelling unit that provides complete, independent living facilities for one or more persons and that includes permanent provisions for living, sleeping, eating, cooking, and sanitation on the parcel or parcels on which the primary unit is situated. Government Code §65852.2(j)(4). An ADU also includes an “efficiency unit” as defined in Health & S C §17958.1, or a manufactured home as defined in Health & S C §18007. Government Code §65852.2(j)(4).

Government Code §65852.2 provides that cities and counties may adopt ordinances providing for the creation of ADUs in single-family and multifamily residential zones, but are not required to do so.  Under the new law, local governments that did not adopt or amend a local ordinance that complies with the new state law by Jan. 1, 2017 have to follow the state law until they approve a one.  The law further provides that a local government may not adopt an ordinance prohibiting ADUs outright.  Also, if the local government chooses not to adopt its own ordinance, it is obligated to grant a variance or special use permit for any ADU that meets the requirements of the statute.  The state created a default ADU approval process by which the local agency must accept any application for the creation of an ADU and “approve or disapprove the application ministerially without discretionary review… within 120 days after receiving the application.” Government Code §65852.2(b).

On the other hand, if the local agency decides to adopt an ordinance, it may not impose standards on ADUs in excess of those specified by statute but it may include less restrictive standards. Government Code §65852.2(a)(6).  The following statutory standards apply:

• The ADU cannot be intended for sale separate from the primary residence and may be rented.
• The lot must be zoned single-family or multifamily and contain an existing, single-family home.
• The ADU can either be attached or located within the living area of an existing dwelling or be detached from the existing dwelling (but located on the same lot).
• The accessory structures within which an ADU may be created include a studio, pool house, or similar structure.
• An attached ADU may not result in increased floor area that exceeds 50 percent of the existing living area, and in no event can the increased floor area exceed 1200 square feet.
• The total floor area of a detached ADU may not exceed 1200 square feet.
• The jurisdiction may require owner occupancy for the primary residence or the ADU created through the ministerial ADU approval process.
• The city may regulate rentals of less than 30 days, as San Francisco does.
• Parking requirements for an ADU cannot exceed one parking space per unit or bedroom, whichever is less.
• For units created within an existing space, cities and counties cannot require any additional parking.
• Parking requirements are waived if the home is within one-half mile of public transit, within a block of a car-share vehicle, in an architecturally and historically significant district, or if on-street parking permits are required but not offered to the second-unit occupant.
• No setback is required for an existing garage that is converted to a portion of an ADU.
• Local authorities may designate by ordinance areas where ADUs are permitted, based on criteria such as the adequacy of water and sewer services and the impact of second units on traffic flow.
• Local authorities can require ADUs to stay within the allowable density for the lot.

In addition, Government Code §65852.2(a)(3) further eases the burden on homeowners by requiring local agency standards be objective in nature so that each permit application can be considered “ministerially without discretionary review or a hearing.”  Any existing local ordinance “shall provide an approval process that includes only ministerial provisions for the approval of accessory dwelling units and shall not include any discretionary processes, provisions, or requirements for those units, except as otherwise provided” in Government Code §65852.2. Government Code §65852.2(a)(4). In addition, under Government Code §65852.2(e), local agencies must approve a building permit application to create, within a single-family residential zone, one ADU per single-family lot if “the unit is contained within the existing space of a single-family residence or accessory structure, has independent exterior access from the existing residence, and the side and rear setbacks are sufficient for fire safety.”

A third law, Assembly Bill 2406 (Thurmond), which took effect in September 2016, gives jurisdictions the option of allowing homeowners to create a “junior accessory dwelling unit.” This is a unit created within an existing bedroom that has an efficiency kitchen (no gas or appliances requiring 220 volts) and an interior connection to the main house. This can be two doors with separate locks, like adjoining hotel rooms.

Governor Brown signed two more separate bills on October 8, 2017: Senate Bill 229 (Wieckowski) and Assembly Bill 494 (Bloom). Both bills, which went into effect January 1, 2018, clarify and improve various provisions of the law, including allowing ADUs to be built concurrently with a single-family home, opening areas where ADUs can be built to include all zoning districts that allow single-family uses, modifying fees from special districts, and further reducing parking requirements.

Senator Bob Wieckowski (D-Fremont), who represents the 10th District, which includes southern Alameda County and northeast Santa Clara County, and who sponsored Senate Bill 229, recently introduced Senate Bill 831, a new bill which addresses some issues brought to light after the passage of SB229 and SB1069. SB831 eliminates all local fees for an ADU; creates a temporary amnesty program to evaluate existing unpermitted units; holds local agencies accountable through the HCD; and deems ADU permit applications to be automatically approved if an agency has not acted upon the application within 120 days of its submittal.

Although still in its infancy, California’s ADU reform laws have encouraged people to build more ADUs, and build them safer and better. Since the passage of SB1069 in 2016, applications for ADUs have skyrocketed in major urban areas in California, including Los Angeles, San Diego, Oakland, San Francisco, San Jose and other cities across the state.  Los Angeles has seen the most dramatic jump, from only 90 applications in 2015 (prior to the new law going into effect) to 1,970 received between January- November 2017.