Cities face demanding requirements as part of the new ADU bill, including a sixty day turnaround time on permits, a host of changing restrictions, and poorly understood enforcement mechanisms. The fear of misstepping has prompted many cities to second guess, resulting in a patchwork of ADU requirements that are not tied to the ultimate goals of the city: the chief of which is to provide the highest quality living environment to the largest number of citizens. As such, we have prepared the following resources for California Cities that balance the existing laws with City goals.
We believe California Cities should embrace ADUs, since ADUs provide a higher quality of living than other multifamily buildings without substantially impairing the city’s fabric. ADUs may be (partially) counted by cities trying to meet their RHNA target housing numbers, and ADUs put money in the pockets of average Californian homeowners. Finally, ADUs are generally not controlled by large management companies, and many are increasingly affordable based on size and layout. In comparison to large multi-unit projects, ADUs are better integrated into the fabric of the community.
Outline Of Requirements on Cities
Cities should shift their thinking on ADUs, using positive reinforcement to emphasize the construction of “good ADUs” since virtually all city checks on “bad ADUs” are unavailable. The reality of the situation is that under the state law, residents are allowed to build an 800 SF 16 foot tall and 4 foot side yard ADU, with little oversight, in a very short period, with little to no parking. Cities that struggle against this reality almost certainly will face drawn out litigation and the result will be that ADU products built within the city are a bad fit.
Height and Side Yards
At a minimum, cities must permit an ADU that is at least 16 feet tall with 4 foot side yards.
While it may be tempting to restrict ADUs to the greatest extent possible, 16 feet at most provides a single story. The end result is greater lot coverage, with fewer green spaces, and the potential destruction of garage and parking space on the ground floor. When the state enacted the statute, many of these realities were poorly understood. For that reason, the state statute clearly allows cities to create less restrictive height and side yard requirements provided that cities make a good faith effort to permit ADUs. But what will those requirements be, and how can they be enforceable without the complete city planning process?
To best answer this question, we believe that cities should streamline the production of ADUs that meet all of the existing requirements in the zone and otherwise restrict ADUs to the maximum extent allowed by the state law. Most ADU projects will meet all the requirements of the existing zone in terms of height, setback, FAR, and coverage ratios. For the best outcomes, cities can encourage applicants to meet all the existing rules for the zone, which have gone through the rigorous planning process. Any project less than 1200 SF should be treated as an “ADU,” with the required sixty-day turnaround, limited fees, and limited notifications. ADUs that exceed the existing requirements in the zone would then be subjected to the stringent requirements outlined by the state law.
By structuring the approval process this way, cities can provide an incentive for people constructing ADUs to meet all of the existing requirements in a zone which are often more logical than the sweeping state requirements.
Approval Process
The State ADU Law requires that permitting decisions be made in less than sixty days. For many building departments large and small alike this short turn around time is intimidating. Cities should work with developers to create technological solutions to meet this deadline, while still providing the highest quality plancheck and review services. By favoring manufactured and modular homes, much of the work can be removed from the plancheck process, since these homes are guaranteed to meet the state building codes. Cities can provide resources to builders and homeowners that help them meet these deadlines.
The statute also provides for limited neighborhood council oversight and notification limitations. Cities that view these as an important part of the construction project can still encourage people adding ADUs to attend these meetings by shifting their thinking on ADUs. By allowing the construction of ADUs up to the city zoning requirements rather than the stricter state limits, many ADU builders will be enticed into building something not otherwise allowed “by right.” Provided that the entire process is not much more burdensome than outlined by state law, the benefit of operating under existing state requirements is probably sufficient to encourage many ADU builders to comply with existing procedural requirements.
Cities that do not meet these procedural requirements may expose themselves to legal consequences and more aggressive state oversight into their planning and development process. Where cities persistently deny otherwise valid ADU applications, merely to give themselves more time, state oversight and legal action is also likely. By working with ADU builders, rather than against them, cities can develop an effective process that ultimately results in the highest quality of ADU construction.
ADUs in Multifamily Buildings
Multifamily property owners are permitted, with only ministerial approval, to construct two new ADUs on their property each up to 800 Square Feet, as well as to renovate existing spaces and add additional units accounting for up to 25% of the existing units in the building. The resulting units under both requirements will be absurd without proactive intervention.
Regarding the two additional units; few if any multifamily buildings have enough space to add two units. Nonetheless, multifamily property owners have a right under the new state law to build two units with only ministerial approvals. For multifamily property owners, especially those with rent controlled properties, the benefit provided by adding two additional units is simply too high to ignore. Therefore, if a strict 16 foot height limit is followed, virtually all multifamily properties will replace ground floor space, usually parking or green space with units. Most parking and green space requirements were adopted after many multifamily buildings were constructed, so there is no requirement that these buildings keep either in place.
Concerning the additional 25% of units that may be added; converted interior spaces within buildings are not likely to provide exceptionally good places to live. Some units may be little more than a storage closet. Other units may be located in converted public spaces, depriving existing residents of the benefit of that space.
In order to avoid each of these consequences, cities should, once again, permit construction up to the existing requirements in a zone. In many cases, this will allow the construction of ADUs on top of existing structures, over existing parking, and around ground floor green spaces to preserve these essential elements of the city. Where property owners avoid the destruction of parking and green spaces, they should be rewarded by the zoning code, rather than penalized. While the state law (Gov’t Code Section 65852.2 (e)(1)(D)) is ambiguous regarding whether a 16 height limit applies to multifamily structures, the law clearly states “This section does not limit the authority of local agencies to adopt less restrictive requirements for the creation of an accessory dwelling unit.”
Fee Calculator and other COnsiderations
The new California law prohibits impact fees on ADUs under 750 Square Feet. Fees for units above 750 feet must be proportional to fees on new homes, given the smaller size of the ADU. The law permits connection fees and capacity charges, though it does not require residents to create a new water/sewer connection.
While impact fees are not available, cities may charge a reasonable rate for the actual costs incurred while approving ADUs and for the other permits required. For this reason, we encourage cities to build new separate systems for ADUs. The costs of these new systems can be passed on to people building ADUs and keep the existing building department system free from becoming bogged down with hundreds (or thousands) of ADU permits.
CEQA Applicability
Most ADU related decisions made by a city are CEQA exempt and do not require any discretionary approvals. Cities are permitted to exceed the minimum requirements set out in the State ADU law without subjecting themselves to CEQA liability in accordance with CEQA Guidelines Sections 15301, 15302, 15303.
Each ADU has only a very modest impact on surrounding communities and an ADU will not create even a slight impact. ADUs are ideal for increased housing production and in many cases, addition of one or more ADUs to a property should be a mitigation measure considered before construction of a new building.