A Practical Overview of ADUs

BY MARK G. GUITHUES, ESQ.

Since 2015, California’s Legislature has attempted to reduce the State’s housing shortage by enacting laws which encourage the construction of accessory dwelling units (ADUs). It has done so by forcing local municipalities to reduce local zoning and permitting barriers for such “affordable housing.” Along the way, the State has nullified any HOA covenant, restriction or governing document (CC&Rs, architectural guidelines, etc.) which “prohibits or unreasonably restricts” the construction or use of ADUs or junior accessory dwelling units (JADU) from being constructed on single-family residential lots. This basically means that owners can build or convert spaces into ADUs and JADUs at their homes.

ADU Defined. ADUs are additional living quarters on single-family lots (not condominiums) that function independently of the primary dwelling unit. Also known as accessory apartments, accessory dwellings, mother-in-law units, or granny flats. ADUs may be attached to or detached from the primary dwelling unit, and provide complete independent living facilities for one or more persons, including permanent provisions for living, sleeping, cooking, eating and sanitation.

JADU Defined. JADUs are smaller than ADU’s, with less amenities. JADU’s must be no larger than 500 square feet. These may be bedrooms or converted garages which have an entrance from the main home and an entrance to the outside from the unit. These units must have cooking facilities, including a sink and stove, but are not required to have a dedicated bathroom in the JADU space. A bathroom must be available in the primary residence or otherwise nearby in an accessible location.

Streamlined Approval. The new laws focus on expediting and streamlining the local government procedures and approvals required for ADU/JADU applications. For example, the processing time may not be greater than sixty (60) days. Many applications will only require ministerial approval, meaning reduced administration procedures such as notice of a hearing to the neighbors. In addition, impact fees, such as permitting fees, utility connection fees, etc., are to be significantly reduced and may be imposed on a tiered basis depending on size of the unit. Expect cities to be on board with these new living spaces, which can be used in meeting their State mandated requirement to provide a certain quantity of affordable housing.

Association Aesthetics. Associations may impose “reasonable restrictions” on ADUs and JADUs that do not unreasonably increase the cost to construct, effectively prohibit the construction of, or extinguish the ability to otherwise construct, an ADU or JADU consistent with existing law. That generally looks

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A Practical Overview of ADUs Continued from page 15 like the standard for limitations on solar installations, which logically means that an association might limit the color and finish appearances somewhat, but not much else. Some of the more significant issues facing planned developments include:

Multiple ADUs/JADUs. The new laws will allow a combination of living spaces, on a single-family residential lot, such as the original house plus an ADU and two JADUs. For example, owners can build several combinations, including a detached ADU on the property and converting the garage or other unlivable area into a JADU.

Garage and Other Conversions. The ADU statutes will allow garages and other types of conversions of traditionally unlivable space into ADUs or JADUs based on size. Once converted, these spaces may be rented to third parties as legal living spaces. Municipalities may require replacement of the parking in certain situations, or conversely may elect to remove all parking requirements as they pertain to these homes.

Setbacks. Setbacks are reduced to “no more than four feet from the side and rear lot lines.” If an association’s architectural guidelines or other governing documents have more restrictive setbacks, those provisions will be void and unenforceable. A question is whether an association will be able to enforce view restrictions, if any, contained in its governing documents.

Association Parking.

Associations are prohibited from requiring residents to park within the garages if the owner is converting that garage into an ADU or JADU. Governing documents requiring garage parking will be considered a restriction that prohibits the construction of an ADU, and therefore void and unenforceable.

Additionally, where parking structures, such as a garage, are demolished to construct an ADU, the owners are not required to replace those off-street parking spaces. Association’s should require that driveway parking is to be filled before street parking is used. If such parking is not created, issues will be created with on-street parking.

Enforcement. Enforcement issues will increase, with potentially inconsistent results. For example, consider whether associations should continue to enforce garage parking requirements against owners who do not convert their garages to ADUs. Should it enforce off-street parking requirements against owners who choose to fill their garages with storage, game rooms or simply choose not to park therein?

Owner Occupied and Rentals. The ADU laws allow local agencies to require owner occupancy of either the primary residence or the ADU as part of the permitting application. The local agency may also require the applicant to agree to rentals of terms longer than thirty (30) days. Associations will need to review their local ordinances for existing or revised occupancy and rental requirements and adopt appropriate provisions within their governing documents.

Governing Documents and Policies. Associations will need to work with legal counsel to review or prepare restrictions to these documents to ensure they do not conflict with the ADU laws or impose restrictions that unreasonably increase the cost to construct or effectively prohibit the owner’s ability to construct and use ADUs or JADUs consistent with these new laws.

Owner and Director Takeaway: The purpose of AB 670 and its companion bills is to address what the Legislature defines as a severe housing crisis by significantly increasing the supply of affordable rental units in California. As there are numerous, complicated pieces to the over-arching statutory scheme applicable to ADUs, HOA boards and management professionals will need to prepare for upcoming challenges in implementing architectural restrictions within their planned development communities.

Mark G. Guithues, Esq. is an attorney and founding partner with the law firm Community Legal Advisors, Inc., with offices in Orange County, San Diego, Inland Empire and Coachella Valley. Mr. Guithues has been serving as general counsel to common interest developments for 25 years and also serves on the 2020 Echo board of directors.

ADU Rule Suggestions

Require an applicant for an ADU/JADU to be an owner-occupant.

Require the ADU/JADU be architecturally consistent with the main residence.

Require that, so long as the property is operated as an ADU/ JADU, that some portion of the property be resided in by the owner.

Require that the property be used for rental terms longer than 30 days.

Require that if a garage is converted into an ADU/JADU, that the residents fill the driveway spaces (including parking in tandem) before parking on the street.