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Accessory Dwelling Units

Way back on October 8, 2017, Governor Brown signed into law two separate bills: SB229 (Wieckowski) and AB494 (Bloom). Those bills were designed to promote the development of Accessory Dwelling Units (ADUs), also known as granny flats, backyard cottages, casitas, in-law units, over-garage apartments, and other secondary units built on a lot in addition to the primary home. These changes to the law originally did not affect private restrictions in common interest developments. However, they paved the way for AB670 (Friedman) which was signed into law on August 30, 2019 and became effective on January 1, 2020. This newest bill expands ADU provisions to Planned Developments (not Condos or Stock Co-ops) and adds section 4751 to the California Civil Code.

Pursuant to Civil Code § 4751, any restriction or provision of a governing document that effectively prohibits or unreasonably restricts the construction or use of an accessory dwelling unit or junior accessory dwelling unit on a lot zoned for single-family residential use is void and unenforceable. However, community associations are still able to impose reasonable restrictions on accessory dwelling units and junior accessory dwelling units. For purposes of Civil Code § 4751, “reasonable restrictions” are those 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.

These changes were intended to address California’s affordable housing shortage. Housing advocates view ADUs as a quicker way to add less expensive housing than building new housing. However, ADUs may also increase traffic issues and overcrowding in subdivisions. The new law is applied retroactively – meaning associations, whether they rewrite their governing documents or not, must allow ADUs and Junior-ADUs.

So, what exactly are accessory dwelling units and junior accessory dwelling units?

An “accessory dwelling unit” is a second separate living unit on a lot. It can either be detached or contained within the walls of the house on the lot, up to 1,200 square feet in size. To be considered an ADU it must include separate cooking, sleeping, and bathroom facilities. An ADU may also have relaxed setback and parking requirements.

A “junior accessory dwelling unit” may be up to 500 square feet 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 Junior-ADU. Similarly, it should require that 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 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.