By Leena Danpour, Esq.
Recent California legislation, which became effective as of January 1, 2023, makes it easier for homeowners
to obtain permits for building accessory dwelling units (ADUs) on their lots. An ADU is an additional residential structure built on the same lot as a primary structure. California Senate Bill 897 and Assembly Bill 2221 (subsequently codified as Government Code Section 65852.2 and Health and Safety Code Section 17980.12), were enacted to increase the housing supply across the state, which, by doing so, significantly amends California state laws in favor of homeowners who want to build ADUs on their properties. The new laws have an astounding impact on how housing infrastructure will change. Below is a breakdown of the changes to the process of approving an ADU, the location of where an ADU may be constructed, and
the allowable size of an ADU.
Historically, when a building plan for a structure is being approved by a local agency, subjective measures will be used to determine whether the size and style fit into the overall aesthetic of a given area. That is no longer the case for ADUs. The recently passed ADU laws require that local agencies only follow objective standards when reviewing an ADU application, and the laws prohibit following any “standard that involves personal or subjective judgment.” Such objective standards may include, but are not limited to, the ADU’s
size, height, and safety. But it does not stop there. If an ADU application is denied for being in non-compliance with an objective standard, the homeowner is entitled to receive a full and extensive set of comments with a list of items that are defective and how those defects can be remediated. These laws supersede an association’s governing documents that may contain contrary or prohibitive language.
An ADU may be attached to, or detached from, a primary dwelling. The recent laws now permit an ADU that is detached from a primary dwelling to be constructed in a garage. Further, a lot’s front yard setback can no longer be used to prohibit construction of an ADU, if there is no alternative to allow for construction of an eight hundred (800) square feet ADU that meets height limits, provided it complies with a four-foot side and rear setback.
There are also revised height limits for ADUs. An ADU can now be built as high as eighteen (18) feet, if it is detached from a primary dwelling and on a lot within one-half mile walking distance of a major transit stop or on a lot with an existing or proposed multi-family dwelling. However, if an ADU is attached to a primary dwelling, it can now be built as high as twenty-five (25) feet. This means that ADUs can now be built
as tall structures, and potentially as a two-story structure. What does this mean for associations? It means that it will be difficult for associations and local agencies to stop homeowners from building ADUs on their lots, unless there is a good objective reason to do so. It also means that if an association denies a homeowner’s plan to build a non-ADU additional structure on their lot, savvy homeowners can then convert their plan to one involving an ADU, and thus the recent ADU laws will provide more confidence to homeowners that they will be permitted to do so. Can of worms anyone?
Leena Danpour, Esq. is an Associate Attorney with the law firm of SwedelsonGottlieb and exclusively
represents Homeowners Associations in both litigation and transactional matters, providing
corporate governance advice to boards of directors who serve associations throughout California. You may reach Leena at (310) 207-2207 Ext. 206 or by email at firstname.lastname@example.org.