State Lawmakers Limit Local Control of Accessory Dwelling Units

December 25, 2016

Citing California’s housing shortage, state lawmakers recently took aim at local jurisdictions’ review of accessory dwelling units. These units—also known as second units, in-law apartments, or granny flats—can be a valuable form of housing for family members, students, the elderly, care providers and others, sometimes at below market prices within existing neighborhoods. But local jurisdictions note that the development of accessory dwelling units is not without impact. Such units can adversely affect neighborhood character, parking availability, and privacy, and if devoted to vacation rentals, do little to help meet housing needs.

Nevertheless, two bills (SB 1069 and AB 2299) enact changes to Government Code section 65852.2 that further limit the ability of local jurisdictions to regulate accessory dwelling units, purporting to streamline property owners’ ability to add such units to the housing stock. Yet the new legislation’s convoluted drafting is likely to lead to more complexities, at least while local jurisdictions and the courts sort out the scope of local jurisdictions’ retained authority. The Department of Housing and Community Development’s recent Accessory Dwelling Unit Memorandum adds further nuance. This article explains some immediate implications for local jurisdictions and offers ideas for how cities and counties may still exercise some control.

For accessory dwelling units wholly within existing single-family residences or accessory structures, the new legislation offers the most clarity, but also the most limitations, on how local jurisdictions must process applications. Effective January 1, 2017, local jurisdictions must ministerially approve building permits for the creation of such units so long as they have independent exterior access and side and rear setbacks sufficient for fire safety. Local jurisdictions cannot impose additional requirements for such units.

The new legislation is also clear that any existing local ordinances that do not comport to its requirements will be null and void as of January 1, 2017. The statutory language is broad, implying that entire local ordinances addressing accessory dwelling units (rather than the offending parts) will be nullified if any aspect is out of compliance. For this reason, local jurisdictions are strongly encouraged to closely compare their existing ordinances to the new requirements before the new year.

After January 1, local jurisdictions will have two choices for how to regulate accessory dwelling units that require new construction: either rely on state law or adopt a compliant ordinance to retain small measures of local control.

Reliance on State Law

As one option, local jurisdictions can defer to the standards imposed by the new legislation without adopting a new ordinance. Under this approach, local jurisdictions must make a ministerial decision on an accessory dwelling unit application within 120 days of submission. The application must be granted if the property owner demonstrates that the new unit contains complete independent living facilities for one or more persons, is on a residentially zoned lot containing an existing single-family dwelling, and is not proposed for sale separate from the existing residence. If new construction is proposed, the unit must not be larger than 50% of the existing living area (if the unit is attached) or 1,200 square feet, whichever is less. In addition, the local jurisdiction likely can impose most generally applicable zoning and building code standards, though the legislation leaves some ambiguity about this power, and places specific restrictions on requirements related to parking, setbacks, utility connections, and sprinklers.

Compliant Accessory Dwelling Unit Ordinances

In order to maintain more local control, many jurisdictions are exploring how to adopt accessory dwelling unit ordinances that comply with the new legislation. As the legislation dictates what must be included in a compliant ordinance, local jurisdictions must take care in revising existing codes. Some of the key topics to consider include:

Review. Local agencies must make a ministerial decision on any accessory dwelling unit application within 120 days of receipt of the application.
Designated areas. Via ordinance, local jurisdictions can designate areas where accessory dwelling units may and may not be permitted. These designations may be based on “criteria.” Though the term is not defined, the legislation gives two examples: adequacy of water and sewer services and the impact of accessory dwelling units on traffic flow and public safety. Given the legislation’s stated purpose of further streamlining development of accessory dwelling units, designating any residential zones as off-limits for accessory dwelling unit development should be carefully considered, justified, and documented based on clear criteria. HCD’s Memorandum, which reiterates the state’s goal of reducing barriers to the creation of more accessory dwelling units, confirms the importance of this work.
Parking. The legislation limits local jurisdictions’ ability to impose parking standards on accessory dwelling units. Local jurisdictions are prohibited from imposing any parking requirements if a unit is located within (1) one-half mile of public transit, (2) an architecturally and historically significant historic district, (3) an existing residence or accessory structure, or (4) one block of a car share vehicle (defined by HCD as a “designated pickup and drop off location”), or if on-street parking permits are required but not offered to the resident of the accessory dwelling unit. For other units, local jurisdictions can impose standards requiring up to one parking space per unit or per bedroom, but the legislation requires local jurisdictions to relax the definition of parking space (i.e., by allowing tandem or in-setback parking) unless certain findings are made.
Occupancy Restrictions. In response to concerns about the expansion of short term rentals, the legislation allows local jurisdictions to require that accessory dwelling unit applicants be owner-occupants or that the unit be used exclusively for long-term rentals. HCD recommends the use of a deed restriction to ensure owner occupancy, though this strategy would appear to expand upon the legislation by allowing local jurisdictions to impose owner-occupancy requirements on all future owners, not just applicants.
Utility Hookups. The legislation somewhat limits the ability of local agencies to impose connection fees and capacity charges for utilities such as water and sewers on accessory dwelling units. Because “local agency” is defined by the legislation to include only cities, counties, and cities and counties, these limitations do not apply to other utility providers such as water or sanitary districts. If local jurisdictions want to further encourage development of accessory dwelling units, such jurisdictions should work with utility providers to reduce or eliminate any excessive connection fees or capacity charges.

The legislation also addresses the application of local standards to review of accessory dwelling units (such as setback, height limit, and lot coverage requirements) and unit size. If a compliant ordinance is adopted, the legislation requires the local jurisdiction to submit a copy of the ordinance to the Department of Housing and Community Development within 60 days after adoption.

For more information, please contact SMW attorney Sara A. Clark.

This article is intended for information purposes only and is not legal advice. This article is not intended to be a source of solicitation. This article is intended, but is not promised or guaranteed, to be correct, complete, and up-to-date. This article does not constitute a guarantee, warranty, or prediction regarding the outcome of any legal matter. Readers should not act on the information provided in this article without seeking professional legal counsel.