California Capitol Watch: Addressing the Need for Affordable Housing—Accessory Dwelling Units

By Eric Gelber

Accessory Dwelling Units (ADUs)—also called granny flats, in-law units, secondary units, etc.—are an option for adding much-needed affordable housing in California. An ADU is a smaller (maximum of 1,200 square feet), independent residential dwelling unit located on the same lot as a stand-alone (i.e., detached) single-family home. ADUs can be converted portions of existing homes (i.e., internal ADUs), additions to new or existing homes (i.e., attached ADUs), or new stand-alone accessory structures or converted portions of existing stand-alone accessory structures (i.e., detached ADUs). Junior ADUs (JADUs) are ADUs that are no more than 500 square feet and exist within single-family homes and have cooking facilities including a sink and stove but are not required to have a bathroom.

Among other things, ADUs have the potential to increase housing affordability both for homeowners and tenants, expand the range of housing options within the community, and enable seniors to stay near family members as they age. In recent years, ADUs have grown exponentially in number as more cities, counties, and homeowners seek solutions to increase the supply of affordable housing. The City of Davis permitted a total of 32 ministerial (expedited/nondiscretionary) ADU projects in 2019.

Recent legislation has encouraged ADUs as a tool to address California’s housing crisis. The law places limits on the ability of cities and counties to regulate ADUs by specifying required development standards and streamlining the approval process by requiring that approvals be more ministerial.

Recognizing that its current ADU ordinance is now out of compliance with State law, the Davis City Council, at its May 4^th meeting, will hold a public hearing on proposals for an updated, replacement ordinance to conform the city’s ADU ordinance to current state law.

This session, a number of bills have been introduced in the Legislature related to ADUs. These bills, if enacted, would not be effective until January 1, 2022 (or January 1, 2023 if a two-year bill). Nonetheless, to limit the need for subsequent modifications to the City ordinance, it would be advisable for the Council to review these bills to identify potential future requirements or prohibitions in state ADU law and consider adopting such provisions as part of its new ordinance, as deemed appropriate and authorized under current law.

Following is a brief rundown of some of these pending bills:

• AB 916 (Salas): Would prohibit a city or county legislative body from adopting or enforcing an ordinance requiring a public hearing as a condition of adding space for additional bedrooms or reconfiguring existing space to increase the bedroom count within an existing house, condominium, apartment, or dwelling. Would authorize a local agency to establish a height limitation of 18 feet for those accessory dwelling units located on a lot that has an existing multifamily and multistory dwelling. Would specify that a local agency shall ministerially approve an application for a building permit within a residential or mixed-use zone to create not more than two accessory dwelling units that are located on a lot that has an existing multifamily dwelling but are detached from that multifamily dwelling and are subject to a height limitation of 18 feet, and that those accessory dwelling units may be attached to each other.
• SB 765 (Stern): Would allow a city or county to establish rear and side yard setback requirements for ADUs, except: a) An applicant for an ADU may request an alternative rear and side yard setback requirement based on specific site topographical conditions if the city’s or county’s setback requirements make construction of the ADU infeasible; b) A city’s or county’s rear and side setback requirements may not exceed those in effect on January 1, 2020; c) If the city or county did not have an ADU ordinance in effect on January 1, 2020, the rear and side yard setback shall be four feet.
• AB 345 (Quirk-Silva): Would require a city or county to allow an ADU to be sold separately from the primary dwelling unit on the same parcel to a qualified nonprofit corporation under specified conditions.
• SB 778 (Becker): Would require ministerial approval of a permit to build, in a residential or mixed-use zone, multiple ADUs within existing mixed-use structures (in addition to existing multifamily structures), including commercial space, industrial space, retail space, or other vacant space, provided each unit complies with state building standards for dwellings.
• Ab 561 (Ting): Would authorize the State Treasurer to establish and administer the Help Homeowners Add New Housing Program to assist homeowners in qualifying for loans to construct ADUs.
• AB 1327 (Ting): Would require the California Department of Aging to update information and materials to include information on the benefits of ADUs as a type of home modification and to prominently post the materials on its internet website.
• SB 9 (Atkins): Would prohibit developing more than two units on each of the resulting parcels from a lot split, including ADUs and JADUs.
• AB 1370 (Quirk-Silva): Would require that the annual report on progress made in meeting a city’s or county’s share of regional housing needs include the total the total number of housing units constructed that were approved pursuant to a specified streamlined, ministerial approval process and the total number of ADUs constructed that were approved by the city or county pursuant to specified code provisions.
• AB 1584 (Committee on Housing and Community Development): Would make void and unenforceable any covenant, restriction, or condition contained in any deed, contract, security instrument, or other instrument affecting the transfer or sale of any interest in real property that either effectively prohibits or unreasonably restricts the construction or use of an ADU or JADU on a lot zoned for single-family residential use that meets specified minimum standards established for those units, but would permit reasonable restrictions 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 those specified minimum standards provisions.
• AB 1241 (Jones-Sawyer): Would prohibit the owner of rental housing from requiring as part of the application process disclosure of, or, if such information is received, denying a dwelling based on specified information or occurrences, including, among others, arrests that did not result in conviction, convictions that have been voided, and juvenile justice determinations. Would provide, however, that its provisions do not apply under specified circumstances, including if the rental housing accommodation is a single-family home, duplex, triplex, or ADU in which the owner occupies a unit or bedroom as a principal residence.

Eric Gelber, now retired, is a 1980 graduate of UC Davis School of Law (King Hall). He has nearly four decades of experience monitoring, analyzing, and crafting legislation through positions as a disability rights attorney, Chief Consultant with the Assembly Human Services Committee, and Legislative Director of the California Department of Developmental Services.

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