Written By: Best Best & Krieger LLP

In nearly every legislative session over the past few years, the California Legislature has enacted bills that reduce local control over the development of accessory dwelling units (ADUs). Recent examples include: legislation requiring ministerial approval of ADU applications within 60 days, authorizing ADUs on lots with multifamily dwellings, prohibiting local agencies from imposing height and setback standards beyond state-set limits, and requiring local agencies to allow ADUs to be sold separately from the lot’s primary dwelling if specified conditions are met. (For more information on recent changes in state ADU law, see here, here and here).

AB 2221 and SB 897 are the latest legislative moves in this direction. Both bills will take effect on Jan. 1, 2023. When they do, any local ordinance will be null and void if it does not conform to AB 2221’s and SB 897’s changes to state ADU law. To avoid this result, local agencies should update their ADU ordinances before Jan. 1, 2023.

AB 2221 and SB 897, both of which amended Gov. Code section 65852.2 (see *note at end of alert), include numerous changes to the state ADU laws. There are two dominant themes in the changes. First, cities must let ADUs go taller and closer to the property lines. Second, the Legislature codified a number of interpretations of the law that agencies developed as they’ve interpreted and applied the ADU law in different situations over the last few years.

Height Limitations

Local agencies must allow ADUs taller than 16 feet in the following circumstances:

• If it is located within a half-mile of a major transit stop or high quality transit corridor, a detached ADU that is on a lot with a single-family or multifamily dwelling may be up to 18 feet in height by right, and the ADU be up to two feet taller (for a maximum of 20 feet) if necessary to match the roof pitch of the ADU to that of the main house. Before this most recent legislation, local agencies could cap the height of a detached ADU at 16 feet.
• If a detached ADU is on a lot with an existing or proposed multistory multifamily dwelling, the ADU may be up to 18 feet in height (again, by right), regardless of how close it is to transit.
• An attached ADU may now be up to 25 feet high or as high as a primary dwelling may be under the underlying zone, whichever is lower. But a city may still limit the ADU to two stories.

Front Setbacks

Cities have authority to impose front-yard setbacks on ADUs that are subject to an ADU permit, and that remains generally true, but now a front setback must yield to the extent necessary to enable the construction of an 800 square foot ADU with four-foot side- and rear-yard setbacks. The law has included a similar “must yield” provision for FAR, lot coverage and open-space requirements; the Legislature has added front setbacks to that list.

Adjustments to Application Review Procedures; Additional Restrictions on Denials

• If a city denies an ADU application, it must now provide the applicant with a “full set of comments” listing the specific items that are “defective or deficient.” These comments must also describe “how the application can be remedied” by the applicant. Most cities have been doing this already in practice.
• A demolition permit for a detached garage that is to be replaced with an ADU must now be reviewed with the ADU application and issued at the same time. Many cities have already been doing this in practice, too.
• Local agencies cannot deny an application to create an ADU solely because corrections are needed to address nonconforming zoning conditions, building code violations, or unpermitted structures elsewhere on the lot that do not present a threat to public health and safety and are not affected by the construction of the ADU. Not many cities have been attempting to do this since the ADU law already required cities to disregard nonconforming zoning conditions and building code violations to a great extent when considering an ADU. But note that this is only a limit on holding up an ADU to require compliance elsewhere on the property; it does not insulate the property owner from having to come into compliance separately from the ADU.

Expansion of Where JADUs Can be Built; New Configuration Requirements

• Under existing state law, a junior accessory dwelling unit (JADU) must be “within the walls” of a proposed or existing single-family dwelling. In light of HCD commentary, most cities have understood this to include nonlivable space within the primary dwelling structure, such as attached garages. Now the Legislature has made that express. The new amendments specify that “enclosed uses within the residence, such as attached garages, are considered part of the proposed or existing single-family residence.” The is more a change in the text of the law (that needs to be reflected in the local ordinance) than it is a substantive change in what the law requires. Most cities have already been doing this.
• In instances where the JADU shares a bathroom with the primary dwelling, local agencies must now require the JADU to have an interior entry to the primary dwelling’s “main living area,” independent of the exterior entrances of the JADU and primary dwelling. This too is something that has widely been done in practice but is now an express requirement in the law.

Meaning of “Objective”

Lastly, most cities have understood what the law means by objective standards (based on other changes to housing law in recent years), but the Legislature has now inserted an express definition into the ADU law: An “objective” standard as a standard that involves “no personal or subjective judgment by a public official” and that is “uniformly verifiable by reference to an external and uniform benchmark or criterion available and knowable by both the development applicant or proponent and the public official prior to submittal.”

Next Steps

Because state law requires complete, across-the-board consistency between a local ordinance and the state ADU law, nearly every — if not every — city and county in the state with an ADU ordinance will once again need to amend its ordinance to comply with the changes above. Failure to do so by Jan. 1, 2023, will render any nonconforming local ordinance null and void.

*Note: AB 2221 and SB 897 both amended Gov. Code section 65852.2. AB 2221 was chaptered at 650 and SB 897 was chaptered at 664. Because SB 897 was chaptered after AB 2221 (since 664 appears after 650 in the statute): (i) Section 1 of AB 2221 is operative and Section 1.5 is not; and (ii) Section 2.5 of SB 897 is operative and Section 2 is not.