Accessory Dwelling Units: What Boards Need to Know

By Sean D. Allen, Esq.

Way back on October 8, 2017, or use of an accessory dwelling unit or shortage. Housing advocates view ADUs Governor Brown signed into law junior accessory dwelling unit on a lot as a quicker way to add less expensive two separate bills: SB229 (Wieckowski) zoned for single-family residential use housing than building new housing. and AB494 (Bloom). Those bills were is void and unenforceable. However, However, ADUs may also increase designed to promote the development community associations are still able traffic issues and overcrowding in of Accessory Dwelling Units (ADUs), to impose reasonable restrictions on subdivisions. The new law is applied also known as granny flats, backyard accessory dwelling units and junior retroactively – meaning associations, cottages, casitas, in-law units, over-ga- accessory dwelling units. For purposes whether they rewrite their governing rage apartments, and other documents or not, must now secondary living units built on allow ADUs and Junior-ADUs. a lot in addition to the primary "TO BE CONSIDERED AN ADU So, what exactly are clashome. These changes to the law IT MUST INCLUDE SEPARATE sified as accessory dwelling originally did not affect private COOKING, SLEEPING, AND units and junior accessory restrictions in common inter- dwelling units? est developments. However, BATHROOM FACILITIES. AN ADU Specifically, an “accessory they paved the way for AB670 MAY ALSO HAVE RELAXED SETBACK dwelling unit” is a second (Friedman) which was signed AND PARKING REQUIREMENTS." separate living unit on a lot. into law on August 30, 2019 and It can either be detached or became effective on January 1, contained within the walls of 2020. This most recent bill expands ADU of Civil Code § 4751, “reasonable restric- the house on the lot, and be up to 1,200 provisions to Planned Developments (not tions” are those that do not unreason- square feet in size. To be considered an Condominiums or Stock Cooperatives) ably increase the cost to construct, ADU it must include separate cooking, and adds section 4751 to the California effectively prohibit the construction of, sleeping, and bathroom facilities. An Civil Code. or extinguish the ability to otherwise ADU may also have relaxed setback and

Pursuant to Civil Code § 4751, any construct, an accessory dwelling unit or parking requirements. restriction or provision of a governing junior accessory dwelling unit. A “junior accessory dwelling unit” document that effectively prohibits or These changes were intended to may be up to 500 square feet in size unreasonably restricts the construction address California’s affordable housing and must have an outside entrance and separate cooking facilities, but may share bathroom facilities with the main house on the lot.

In dealing with these new changes we first need to acknowledge that condominium communities and stock cooperatives are exempt. Civil Code § 4751 only applies to planned developments. Secondly, affected communities will want to establish reasonable restrictions through an ADU policy or other architectural rules. To accomplish this, we will need to decide on what restrictions are considered “reasonable” and appropriate.

Any such policy or restrictions may include requirements related to the overall aesthetic of the community and the design of the new ADU or JuniorADU. Similarly, it should require that detailed plans and an architectural application for the construction of the ADU or Junior-ADU be submitted to the board of directors or architectural review committee, and approval be granted, before any such construction work commences. All required construction permits should be mandatory, and the rules could require that the work be performed only by a licensed contractor carrying appropriate insurance coverage. The rules can also address the allowable size of the ADU or Junior-ADU, the use of any shared common area facilities, and any parking concerns. So long as these restrictions do not unreasonably increase the cost to construct, effectively prohibit the construction of, or extinguish the ability to construct an ADU or Junior-ADU then they should be deemed reasonable.

This is just a small sampling of potential rules an association might want to put in place before it is asked to approve the construction of an ADU or Junior-ADU, and what constitutes a reasonable restriction for one association may not qualify as reasonable for another. Therefore, it is important that association boards conduct a diligent inquiry into what restrictions are truly reasonable for their community and members before adopting ADU guidelines for members to follow. Boards should also consult with legal counsel to ensure the new restrictions do not conflict with any existing restrictions in the governing documents.

The bottom line here is that these new laws may significantly impact a community’s facilities and aesthetics. It is in every planned development’s best interest to establish comprehensive rules which directly address the construction of accessory dwelling units before they are needed. In this situation it is best to be proactive, not reactive.

Sean D. Allen, Esq., is a partner with the law firm of Roseman Law, APC, and is the head of the firm’s HOA department. Having exclusively represented homeowner associations and other common interest developments for several years, he has broad experience with all issues and disputes that impact community associations. Sean is an active member of Community Associations Institute (CAI) in several Southern California chapters and has authored a number of articles pertaining to common interest development law and its application to community associations in California.