WRITTEN PUBLIC
COMMENTS RECEIVED
STATE OF CALIFORNIA - BUSINESS CONSUMER SERVICES AND HOUSING AGENCY GAVIN NEWSOM Governor
DEPARTMENT OF HOUSING AND COMMUNITY DEVELOPMENT
DIVISION OF HOUSING POLICY DEVELOPMENT
651 Bannon Street, Suite 400 Sacramento, CA 95811
(916) 263-2911 / FAX (916) 263-7453
www.hcd.ca.gov
August 26, 2024
Isidro Figueroa, Community Development Director
Department of Community Development
City of San Marino
2200 Huntington Drive, San Marino, CA 91108
Dear Isidro Figueroa:
RE: Review of San Marino’s Accessory Dwelling Unit (ADU) Ordinance under State ADU Law (Gov. Code, §§ 66313 - 66342)
Please Note: As of March 25, 2024, with the Chaptering of Senate Bill (SB) 477 (Chapter 7, Statutes of 2024), the sections of Government Code relevant to State ADU and JADU Law have been re-numbered (Enclosure 1).
Thank you for submitting the City of San Marino (City) ADU Ordinance No. O-24-1411 (Ordinance), adopted March 13, 2024, to the California Department of Housing and Community Development (HCD). HCD has reviewed the Ordinance and submits these written findings pursuant to Government Code section 66326, subdivision (a). HCD finds that the Ordinance does not comply with State ADU and junior accessory dwelling unit (JADU) Laws in the manner noted below. Pursuant to Government Code section 66326, subdivision (b)(1), the City has up to 30 days to respond to these findings.
Accordingly, the City must provide a written response to these findings no later than September 25, 2024.
While the Ordinance addresses many statutory requirements, HCD finds that the Ordinance fails to comply with State ADU Law as follows:
1. Section 23.01.01 – ADU Definition – The Ordinance defines an ADU as, “An attached or detached residential dwelling unit which provides complete independent living facilities for one or more persons. It shall include a kitchen as defined in this Chapter, a full bath, and permanent provisions for living, sleeping, eating, cooking, and sanitation on the same parcel where the primary singlefamily residence is situated.” However, ADUs may also be located on lots and/or parcels with existing or proposed multi-family structures.1 Therefore, the City must amend its ordinance to allow ADUs on the same parcel as the singlefamily or multifamily dwelling is or will be situated.
2. Section 23.01.01 (2) – “Converted ADU” Definition – The Ordinance states that, “A Converted ADU does not include an ADU that would: (a) increase the height of an Existing Structure; (b) require the removal of more than 50 Cubic Yards as 1 Gov. Code, §§ 66313, subd. (a); 66314; subd. (d)(2); 66317, subd. (a).
Isidro Figueroa, Community Development Director
part of the excavation of an Existing Structure…” However, ADUs pursuant to Government Code section 66323, subdivisions (a)(1) and (a)(3), may not be precluded from development for increasing the height of an existing structure or removing more than 50 Cubic Yards of the existing structure as a condition of ADU approval. While the City may provide a definition for converted ADUs, the definition cannot preclude ADUs pursuant to Government Code Section 66323, Subdivisions (a)(1) and (a)(3). Therefore, the City must amend its ordinance to remove these sections or explicitly clarify that ADUs converted from existing or proposed space may not be precluded from development.
3. Section 23.02.25, subdivisions (A), (B)(5), (E)(3), (E)(4), (F)(2)(a), (F)(3)(a), (G)(1), (G)(2)(a), (G)(3)(a), (H)(16)(a), & (I)(5) – Out of Date Code References – The Ordinance makes repeated references to standards contained within Government Codes 65852.2 and 65852.22. While correct at the time of adoption, these code references are now out-of-date due to the Chaptering of Senate Bill 477. Therefore, the City must amend its ordinance to replace these code references with their, re-chaptered sections.
4. Section 23.02.25 (D)(3) – Application Denial – The Ordinance states, “An application that does not conform to the specific standards set forth in this Section, including the development standards set forth in Section 23.02.25(G) shall not be approved ministerially but shall require design review, a conditional use permit, or variance, as applicable. However, state law requires that when a local agency denies an application for an ADU or JADU, the permitting agency shall, within 60 days, return in writing a full set of comments to the applicant with a list of items that are defective or deficient and a description of how the application can be remedied by the applicant.2 Therefore, the City must amend its ordinance to reflect the lawful permit denial procedure.
Section 23.02.25 (E) – Location and Zoning Requirements – The Ordinance states, “An accessory dwelling unit may be located only on residentially zoned lots or upon a lot with an existing residential dwelling.” However, ADUs must be allowed in all areas zoned to allow single-family or multi-family use, whether these areas are exclusively zoned for residential use or not. 3 Therefore, the City
must amend its ordinance to reflect state law.
5. Section 23.02.25 (E)(1), (2), and (3) – ADU Allotment – The Ordinance states that, “One JADU and one ADU may be constructed on a single family residential lot where the JADU and ADU meet the requirements in Government Code Section 65852.2(e).” However, this language omits the potential for ADUs constructed on lots zoned for multifamily use.4 Therefore, the City must amend its ordinance to also allow for ADUs constructed on lots zoned for multifamily use.
2 Gov. Code, § 66317, subd. (b).
3 Gov. Code. §§ 66314, 66323, subd. (a)(3).
4 Gov. Code, §§ 66314, 66323, subd. (a)(3).
Isidro Figueroa, Community Development Director
Additionally, Government Code section 66323, subdivision (a), states, “Notwithstanding Sections 66314 to 66322, inclusive, a local agency shall ministerially approve an application for a building permit within a residential or mixed-use zone to create any of the following: (1) One accessory dwelling unit and one junior accessory dwelling unit per lot with a proposed or existing singlefamily dwelling…(A) The accessory dwelling unit or junior accessory dwelling unit is within the proposed space of a single family dwelling or existing space of a single-family dwelling or accessory structure.” Paragraph (2) permits “[o]ne detached, new construction, accessory dwelling unit that does not exceed fourfoot side and rear yard setbacks.” The use of the term “any” followed by an enumeration of by right ADU types permitted means that any of these ADU types can be combined on a lot zoned for single-family dwellings.
This permits a homeowner, who meets specified requirements, to create one converted ADU; one detached, new construction ADU; and one JADU. Thus, if the local agency approves an ADU that is created from existing (or proposed) space, and the owner subsequently applies for a detached ADU (or vice versa) that meets the size and setbacks pursuant to the subdivision, the local agency cannot deny the application, nor deny a permit for a JADU under this subdivision.
This subdivision applies equally to ADUs created pursuant to Government Code section 66323, subdivisions (a)(3) and (a)(4) on lots with proposed or existing multifamily dwellings. Limiting lots to one ADU would prevent property owners from creating ADUs by right under subdivision (a). Therefore, the City must amend its ordinance to allow for ADU development pursuant to Government Code section 66323, subdivisions (a).
6. Section 23.02.25 (E)(4) – Fire Safety - The Ordinance states “For fire safety purposes, new ADUs and JADUs may only be located on a residential lot that has: 1) at least a 10-foot wide fire lane within 150 feet of the subject property and 2) a minimum fire flow of 1,000 gallons per minute.” However, Government Code section 66314, subdivision (a) provides that a local agency may, through an ordinance, “Designate areas within the jurisdiction of the local agency where accessory dwelling units may be permitted. The designation of areas may be based on the adequacy of water and sewer services and the impact of accessory dwelling units on traffic flow and public safety.” While the City is authorized to designate specific areas where ADUs may be permitted based on impacts on traffic flow and public safety, they can only do so based on substantial evidence in the record that the construction of the ADU it could have a specific, adverse impact on public health and safety5. Therefore, the City must remove this section of the Ordinance or explicitly incorporate the “substantial evidence” to comply with State ADU Law.
7. Section 23.02.25 (F)(2) – Deed Restriction – The Ordinance requires a deed restriction for ADUs. While Government Code section 66333, subdivision (c) requires the recordation of a deed restriction for JADUs, the deed restrictions for 5 Gov. Code, § 66314 (d)(8).
Isidro Figueroa, Community Development Director
JADUs are limited to prohibit the separate sale of a JADU and a restriction on the size and attributes of the JADU. Government Code section 66315 requires that no additional standards, other than those provided in Government Code Section 66314, shall be used, or imposed on accessory dwelling units. The City may not require a deed restriction prior to and as a condition of approval of an ADU building permit application.6 Therefore, the City must amend the Ordinance to remove this requirement.
8. Section 23.02.25 (F)(2)(b) – JADU Rental Terms – The Ordinances states, “If the ADU/JADU is rented, it shall not be rented for a period of less than 90(ninety) consecutive days. A minimum 90-day rental requirement imposes rental requirements for JADUs that are inconsistent with state law, which only requires a minimum rental term of 30 (thirty days) for ADUs and JADUs built pursuant to Government Code section 66323.
7 Therefore, the City must amend
its ordinance to clarify that JADUs rental term must be longer than 30 days consistent with Government Code section 66323 subdivision (d).
9. Section 23.02.25 (F)(2)(d); (H)(1); (H)(2); (H)(6) – Livable Area – The Ordinance states that, “The ADU/JADU shall be restricted to the Livable Area approved at the time of building issuance.” However, State ADU Law allows for the development of multiple accessory dwelling units within the portions of existing multifamily dwelling structures that are not used as livable space.8 Therefore, the City must amend its Ordinance to allow for the development of ADUs pursuant to Government Code section 66323, subd. (a)(3).
Additionally, the Ordinance defines “Livable area” as “the square footage of all floor areas of a building, including basements, measures from the exterior faces of walls….” The Ordinance makes multiple references to “Livable Area” regarding floor area calculations. However, floor area must be calculated according to area within the inside perimeter of the exterior walls of the building under consideration, exclusive of vent shafts and courts, without deduction for corridors, stairways, ramps, closets, the thickness of interior walls, columns, or other features.9 Therefore, the City must amend its ordinance to calculate floor area in alignment with the California Building Code (CBC).
10.Section 23.02.25 (F)(2)(e) – Separate Utilities – The Ordinance states that, “A second unit may not have utility services separate from those of the main residential structure on the same property.” However, for ADUs described in paragraph (1) of subdivision (a) of Government Code Section 66323, a local agency, special district, or water corporation shall not require the applicant to install a new or separate utility connection directly between the ADU and the utility or impose a related connection fee or capacity charge, unless the ADU was constructed with a new single-family dwelling, or upon separate 6 Gov. Code, § 66314.
7 Gov. Code, § 66323, subd. (d).
8 Gov. Code, § 66323, subd. (a)(3).
9 CBC, § 202.
Isidro Figueroa, Community Development Director
conveyance of the ADU pursuant to Section 66342.
10 Therefore, the City must
amend its ordinance to specify that ADUs described in paragraph (1) of subdivision (a) of Government Code Section 66323 are an exception to this standard.
11.Section 23.02.25 (F)(2)(g) – Permit Revocation – The Ordinance states that, “Violations and lack of compliance with any provisions of this Section may result in legal action against the property Owner, including revocation of any right to maintain an ADU/JADU on the property…” While this provision aligns with State ADU Law, a local agency, upon request of an owner of an ADU for a delay in enforcement, shall also delay enforcement of a building standard, subject to compliance with Section 17980.12 of the Health and Safety Code, pursuant to Government Code section 66331. Therefore, the City should amend its ordinance to clarify that San Marino residents may request such a delay in enforcement of building standards prescribed by the Ordinance under certain conditions.
12.Section 23.02.25 (G)(1) – ADUs on Multi-family Lots – The Ordinance outlines the planning application exemptions for ADUs created pursuant to Government Code section 65852.2, subdivisions (e)(1)(A) and (B) (now section 66323, subdivisions (a)(1) and (2)). However, the Ordinance fails to specify, here and elsewhere in Section 23.02.25, the potential for the development of ADUs on lots with proposed or existing multifamily dwellings per Government Code section 66323, subdivisions (a)(3) and (4). As Government Code outlines the standards to be met for this type of ADU on lots with proposed or existing multifamily dwellings, the City’s Ordinance must do the same. Therefore, the City must amend its ordinance to clarify the complete potential for comprehensive ADU development on lots with existing or proposed multi-family dwellings pursuant to state law.
13.Section 23.02.25 (H)(2); (H)(3) – ADU Height and Datum Point Definition – The Ordinance restricts attached and detached ADUs from exceeding “one story or sixteen feet in height”. However, these requirements were superseded on January 1, 2023, by the passage of SB 897. Consequently, local agencies may not impose any height limitation that does not allow for the minimum standards enumerated by Government Code section 66321, subdivision (b)(4). Therefore, the City must amend its ordinance to reflect the respective statutory height limitations Additionally, please clarify what is meant by “datum point” or remove from the Ordinance.
14.Section 23.02.25 (H)(6)(b) – “Street Facing” Setbacks – The Ordinance states, “Attached and detached ADU [sic] on corner lots are required to abide by the front and street-facing side yard setback requirements of the underlying zoning district in which the ADU is located.” Further, a setback of no more than four feet from the side and rear lot lines shall be required for an ADU not converted from an existing structure or a new structure constructed in the same location and to 10 Gov. Code, § 66324, subd. (d).
Isidro Figueroa, Community Development Director
the same dimensions as an existing structure.
11 Any “street-facing side yard
setback” regulations that imposes further restrictive setback requirements would conflict with state law. Therefore, the City must amend its ordinance to remove these requirements.
15.Section 23.02.25 (H)(9); (H)(11); (H)(12) – Design Standards – The Ordinance states, “An ADU shall exactly match the building materials, color, style, and form of the primary residence.” The Ordinance goes on to state that, “Exterior lighting shall be shielded or directed so that it does not glare off-site or illuminate the primary residence or any adjacent property.” Finally, the Ordinance requires that: “Windows shall be located to avoid direct line of sight to windows of adjacent properties. However, local design standards provided by the Ordinance pursuant to Government Code sections 66314 – 66322 may not preclude the development of ADUs pursuant to Government Code sections 66323.
Therefore, the City must amend its ordinance to clarify. .
Additionally, design standards for ADUs must be objective standards, i.e. standards that involve no subjective judgment by a public official and are 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.12 Terms such as “avoid direct line of sight” are subjective terms. Therefore, the City must adopt objective design standards.
16.Section 23.02.25 (H)(14) – Design Standards – The Ordinance states that, “Any common wall separating the accessory dwelling unit from the main building shall be soundproofed.” However, local design standards provided by the Ordinance pursuant to Government Code sections 66314 – 66322 may not preclude the development of ADUs pursuant to Government Code sections 66323.
Therefore, the City must amend its ordinance to clarify.
17.Section 23.02.25 (H)(16)(b); (H)(16)(e) – Parking Standards – The Ordinance states that ADU parking will not be required if, “The ADU is entirely within a proposed or existing primary dwelling or other structure”, or if “There is a Cityapproved and dedicated parking space for a car share vehicle located within one block of the ADU. However, local agencies shall not impose parking standards on accessory dwelling units that are part of the proposed or existing primary residence, rather those that are entirely within these structures.13 Additionally, local agencies shall not impose parking standards ADUs that are located within one block of a car share vehicle, regardless of City approval.14 Finally, local agencies shall also not impose parking standards on ADUs when a permit application for an ADU is submitted with a permit application to create a new single-family dwelling or a new multifamily dwelling on the same lot. 15 11 Ibid.
12 Gov. Code, §§66313, subd. (h); 66314, subd. (b)(1).
13 Gov. Code, § 66322, subd. (a)(3).
14 Gov. Code, §66322, subd. (a)(5).
15 Gov. Code,§ 66322, subd. (a)(6).
Isidro Figueroa, Community Development Director
Therefore, the City must amend its ordinance to revise parking exemption conditions for ADUs.
18.Section 23.02.25 (I)(1) – JADU Owner Occupancy – The Ordinance states that, “The Owner of a parcel proposed for a JADU shall occupy as a principal residence…” However, owner-occupancy is required for the owner of the singlefamily residence which will contain the JADU, rather than the owner of the parcel on which the residence sits.16 As a single parcel may contain multiple lots with single family dwellings, the Ordinance fails to specify owner-occupancy requirements in scenarios where the parcel owner and residence owner differ, such as a land lease agreement. Therefore, the City must amend its ordinance to include more precise owner-occupancy language.
19.Section 23.02.25 (I)(4) – JADU Development Standards – The Ordinance states that, “The JADU must be contained entirely within the walls of the existing or proposed Single Family Dwelling Unit.” In addition to this requirement, State JADU Law states that enclosed uses within the residence, such as attached garages, are considered a part of the proposed or existing single-family residence and therefore “contained entirely within the walls of the existing or proposed Single Family Dwelling Unit”.17 Therefore, the City must add this language to comply with State JADU Law.
20.(I)(7) – JADU Interior Entry – The Ordinance states, “An interior entry to the main living area shall be provided to serve a JADU.” However, a requirement for an interior entry from JADU to main living area shall only be required if the JADU lacks a separate bathroom.18 Therefore, the City must amend its ordinance to remove this requirement or specify when, and only when, this requirement may apply.
The City has two options in response to this letter.19 The City can either amend the Ordinance to comply with State ADU Law20 or adopt the Ordinance without changes and include findings in its resolution adopting the Ordinance that explain the reasons the City believes that the Ordinance complies with State ADU Law despite HCD’s findings.21 If the City fails to take either course of action and bring the Ordinance into compliance with State ADU Law, HCD must notify the City and may notify the California Office of the Attorney General that the City is in violation of State ADU Law.22 HCD appreciates the City’s efforts in the preparation and adoption of the Ordinance and welcomes the opportunity to assist the City in fully complying with State ADU Law. 16 Gov. Code, § 66333, subd. (b).
17 Gov. Code, § 66333, subd. (d).
18 Gov. Code, §66333, subd. (e)(2).
19 Gov. Code, § 66326, subd. (c)(1).
20 Gov. Code, § 66326, subd. (b)(2)(A).
21 Gov. Code, § 66326, subd. (b)(2)(B).
22 Gov. Code, § 66326, subd. (c)(1).
Nov 7, 2024
City of Beverly Hills
455 North Rexford Drive, Room 280A
Beverly Hills, California 90210
By email: [email protected]; [email protected]; [email protected]; [email protected]
Cc: [email protected]; [email protected]; [email protected]; [email protected]; [email protected]
Re: Proposed Changes to the City’s ADU Ordinance
Dear Beverly Hills City Council,
The California Housing Defense Fund (“CalHDF”) submits this letter regarding the proposed amendments to the City’s accessory dwelling unit (“ADU”) ordinance, which are calendared as agenda item F1 for the November 7, 2024 City Council meeting.
CalHDF appreciates that the City is amending its ADU ordinance to keep pace with change in state law. CalHDF especially appreciates that the City is instituting an incentive ADU program to incentivize further ADU production.
However, the proposed ordinance has areas where it does not comply with state law.
Furthermore, the proposed ordinance directly conflicts with policies and programs in the City’s Housing Element.
Background
The law gives local governments authority to enact zoning ordinances that implement a variety of development standards on ADUs. (Gov. Code, § 66314.) The standards in these local ordinances are limited by state law so as not to overly restrict ADU development. (See id.) Separately from local ADU ordinances, Gov. Code, § 66323 prescribes a narrower set of ADU types for which it imposes a ministerial duty on cities to approve. “Notwithstanding Sections 66314 to 66322 ... a local agency shall ministerially approve” these types of ADUs. (Id. at subd. (a).) This means that ADUs that satisfy the minimal requirements of section 66323 must be approved regardless of any contrary provisions of the local ADU ordinance. (Ibid.) 360 Grand Ave #323, Oakland 94610
[email protected]
SB 1211, effective 1 January 2025, makes this even more explicit: Gov. Code, § 66323, subdivision (b): “A local agency shall not impose any objective development or design standard that is not authorized by this section upon any accessory dwelling unit that meets the requirements of any of paragraphs (1) to (4), inclusive, of subdivision (a).” In addition, ADUs that qualify for the protections of Gov. Code, § 66323, like other ADUs, must be processed by local governments within 60 days of a complete permit application submittal. (Gov. Code, § 66317, subd. (a).)
State law also prohibits creating regulations on ADU development not explicitly allowed by state law. Government Code Section 66315 states, “No additional standards, other than those provided in Section 66314, shall be used or imposed, including an owner-occupant requirement, except that a local agency may require that the property may be used for rentals of terms 30 days or longer.”
Illegal Limitations on Conversion of Unenclosed Structures City code sections 10-3-5000(A)(9)(c) and 10-3-5001(A)(4)(c) prohibit the conversion of unenclosed structures into ADUs, unless they meet the standards for a new, detached ADU.
The City has no authority to prohibit such conversions under state law. As discussed above, Government Code Section 66315 restricts what the City may regulate to items specifically enumerated in section 66314, and section 66323 further limits the City’s ability to regulate ADU development to basic height and setback for a specific class of ADUs. Nowhere does state ADU law allow the City to forbid the conversion of unpermitted structures into ADUs.
Government Code section 66323, subdivision (a)(1)(A): “(A) The accessory dwelling unit or junior accessory dwelling unit is within the proposed space of a single-family dwelling or existing space of a single-family dwelling or accessory structure …” As you can see, an accessory structure is not limited by state law to only fully enclosed structures.
Illegal Deed Restriction Requirement
City code sections 10-3-5000(A)(14)(a), 10-3-5000(A)(14)(c), and 10-3-5001(A)(12) require a deed restriction as a condition of building permit issuance for the development of an ADU.
This is a clear violation of Government Code section 66323, which prohibits any standards not explicitly authorized in that section. Owner occupancy standards are also not permitted by Government Code section 66315, which forbids standards not listed in section 66314, and it is unclear why the City would want applicants to go through the trouble of filing such a deed restriction, other than to discourage ADU development by increasing development cost.
The California Department of Housing and Community Development (“HCD”) has communicated that such deed restrictions are unlawful in its review of other cities’ ADU 2 of 8
ordinances. See, for example, the attached August 26, 2024 HCD review of the City of San Marino’s ADU ordinance, in which HCD instructs the City to remove its deed restriction requirement.
Additionally, such deed restrictions imposed on ADUs are unenforceable. This is due to the absence of horizontal privity between the City and the applicant. In other words, since the City does not own the applicant’s property at the time of the application, and does not own a neighboring property to whose benefit the proposed restriction(s) redound, black letter property law bars the restrictions from binding future property owners. (See, e.g., Scaringe v.
J. C. C. Enters (1988) 205 Cal.App.3d 1536 [describing the types of privity relationship between covenanting parties that allow enforcement of a deed restriction]; see also Civ. Code §§ 1460 et seq.)
The City should therefore eliminate the deed restriction requirement for all ADUs.
Impermissible Discretionary Process
City code section 10-3-5000(B) and 10-3-5001(B) create a process for discretionary approval of certain ADUs by the Planning Commission. However, state law does not allow any such process.
Government Code section 66316:
“An existing accessory dwelling unit ordinance governing the creation of an accessory dwelling unit by a local agency or an accessory dwelling ordinance adopted by a local agency shall provide an approval process that includes only ministerial provisions for the approval of accessory dwelling units and shall not include any discretionary processes ...”
Government code section 66317, subdivision (a):
“ A permit application for an accessory dwelling unit or a junior accessory dwelling unit shall be considered and approved ministerially without discretionary review or a hearing ...”
If the City wishes to create a path for approval of certain ADUs that are taller or larger than a given threshold, then it should write objective criteria into its code and allow ministerial approval by City staff.
While the City may think that is helping applicants by providing a more flexible, discretionary path, on the contrary it is vastly more helpful to establish clear rules and objective criteria that are approved ministerially, rather than let an applicant embark on a vastly longer, more challenging and expensive discretionary path. 3 of 8
Impermissible Historic Standards
City code sections 10-3-5000(A)(18) and 10-3-5001(A)(19) regulate ADU development on properties listed by the California Register of Historic Resources, the National Register, and the Beverly Hills Register. However, no such standards may be imposed on ADUs that meet the requirements of Government Code Section 66323, subd. (a), as discussed above.
Additionally, for ADUs that do not qualify for the protections of Government Code Section 66323, subd. (a), the City may only regulate historic properties on the California Register pursuant to Government Code section 66314, subdivision (b)(1), which establishes that the city may regulate state register properties, and section 66315, which forbids the regulation of aspects of ADU development not explicitly listed in section 66314.
Unlawful Restriction on ADU Size
City code sections 10-3-5000(A)(4) establishes a maximum ADU size of the site’s remaining floor area in the Central Area south of Santa Monica Boulevard, the Central Area north of Santa Monica Boulevard and the Hillside Area, and Trousdale Estates. Additionally, City code section 10-3-5001(A)(4)(a) restricts the size of an ADU on a multifamily property to 1,200 square feet.
None of these limitations are allowed for ADUs subject to the protections of Government Code section 66323, subdivisions (a). In the case of section 66323, subdivisions (a)(1), state law does not allow a maximum unit size for a conversion of a portion of an existing structure into an ADU on a single-family property. In the case of section 66323, subdivisions (a)(2), state law mandates a minimum allowance of 800 square feet for a new detached ADU on a single-family property. For section 66323, subdivisions (a)(3) and (a)(4), state law does not allow a size limitation for any ADUs constructed on multifamily properties, provided they comply with the specified height and setback requirements, and no size limits for ADUs converted from space within an existing multifamily building.
As discussed supra, SB 1211, effective 1 January 2025, makes this even more explicit: Gov.
Code, § 66323, subdivision (b): “A local agency shall not impose any objective development or design standard that is not authorized by this section upon any accessory dwelling unit that meets the requirements of any of paragraphs (1) to (4), inclusive, of subdivision (a).” And of course Government Code section 66321, subdivision (b)(2) disallows minimum ADU sizes smaller than 850 square feet or 1000 square feet (two or more bedrooms).
The city must allow the aforementioned ADU types as required by state law. 4 of 8
Unlawful Setback Requirements
City code sections 10-3-5000(A)(2) and 10-3-5001(A)(2) require detached ADUs to be located to the rear of the primary dwelling or multifamily building. However, Government Code section 66323 does permit any application of front setback requirements to ADUs that qualify for its protections.
As stated supra, SB 1211, effective 1 January 2025, makes this even more explicit: Gov. Code, § 66323, subdivision (b): “A local agency shall not impose any objective development or design standard that is not authorized by this section upon any accessory dwelling unit that meets the requirements of any of paragraphs (1) to (4), inclusive, of subdivision (a).” There are many policy reasons for this. For instance, a homeowner may prefer to preserve a private backyard space while redeveloping the less useful front yard. While children may play in the backyard, the front yard is closer to the street and less safe for a variety of activities.
Illegal Application of Development Regulations
City code sections 10-3-5000(A)(4)(b) and 10-3-5001(A)(4)(b) allows other city development regulations to apply to ADUs, and only lifts them when there is “no other alternative to comply, and only to the extent necessary to construct the accessory dwelling unit.” However, the City may not apply development standards, other than basic height/setback requirements, for ADUs that qualify for the protections of Government Code section 66323.
As discussed above, Government Code section 66323 mandates that the City approve a specific class of ADUs subject only to specified height and setback requirements, notwithstanding any local code requirements to the contrary. SB 1211 made this even more explicit: Gov. Code, § 66323, subdivision (b): “A local agency shall not impose any objective development or design standard that is not authorized by this section upon any accessory dwelling unit that meets the requirements of any of paragraphs (1) to (4), inclusive, of subdivision (a).”
Furthermore, this process for selectively waiving development standards is not objective, as it is impossible for an applicant to know, ex ante, which development standards the City would waive, and the applicant therefore cannot design the ADU. Government Code section 66314, subdivision (b)(1) requires all ADU development standards to be objective, and the City therefore may not include this provision in its code.
Impermissible Parking Requirements
City code sections 10-3-5000(A)(8) and 10-3-5001(A)(5) require parking for each new ADU, less certain exceptions. However, as discussed above, Government Code section 66323 5 of 8
mandates that the City approve a specific class of ADUs subject only to specified height and setback requirements, notwithstanding any local code requirements to the contrary. This means that the City cannot subject such ADUs to parking requirements.
Impermissible Privacy Requirements
City code sections 10-3-5000(A)(21) and 10-3-5000(A)(18) impose fenestration requirements on ADUs, seemingly for privacy of neighboring properties. However, the City may only require such design requirements for ADUs that don’t qualify for the protections of Government Code section 66323. As discussed above, Government Code section 66323 mandates that the City approve a specific class of ADUs subject only to specified height and setback requirements, notwithstanding any local code requirements to the contrary. SB 1211 made this even more explicit: Gov. Code, § 66323, subdivision (b): “A local agency shall not impose any objective development or design standard that is not authorized by this section upon any accessory dwelling unit that meets the requirements of any of paragraphs (1) to (4), inclusive, of subdivision (a).”
The City may therefore not not require such fenestration design requirements.
Impermissible Building-to-Building Separation Requirements City Code sections 10-3-5000(A)(11) and 10-3-5001(A)(9)(e) impose building-to-building separation requirement on ADUs. However, the City may only require such a requirement for ADUs that do not qualify for the protections of Government Code section 66323. As discussed above, Government Code section 66323 mandates that the City approve a specific class of ADUs subject only to specified height and setback requirements, notwithstanding any local code requirements to the contrary. SB 1211 made this even more explicit: Gov. Code, § 66323, subdivision (b): “A local agency shall not impose any objective development or design standard that is not authorized by this section upon any accessory dwelling unit that meets the requirements of any of paragraphs (1) to (4), inclusive, of subdivision (a).” Building-to-building distance is separately regulated by the building code, and there is no need for the City to include this regulation in this portion of its municipal code.
Impermissible Limits on ADUs Constructed on Multifamily Properties City code section 10-3-5001(A)(1)(a) limits a multifamily dwelling to two detached, new construction ADUs. However, SB 1211, effective 1 January 2025, expands this to allow eight detached ADUs on properties with existing multifamily dwellings. Government Code section 66323, subdivision (a)(4)(A)(ii): “On a lot with an existing multifamily dwelling, not more than 6 of 8
eight detached accessory dwelling units. However, the number of accessory dwelling units allowable pursuant to this clause shall not exceed the number of existing units on the lot.” The City should amend its ordinance to comply with this new law that is about to come into effect.
Housing Element Conflicts
Not only does the City’s proposed ADU ordinance violate state law, it also contravenes programs in the City’s Housing Element, including:
H 2.4 Accessory Dwelling Units. Promote accessory dwelling units (ADUs) through various programs, including regulatory incentives, as a means of providing lower-cost housing options for seniors, caretakers, and others. (Imp. 10.4) Imp 10.4 Accessory Dwelling Units. The City is currently processing a Municipal Code amendment to revise ADU regulations in conformance with current State law and will take various steps detailed below to further encourage the provision of ADUs.
However, by requiring off-street parking and forbidding front yard ADUs, in addition to the other restrictions listed above, the City’s ADU ordinance discourages ADU development. This is distressing, because the City is planning on 150 ADUs to be built during the planning period, including 90 for very low- and low-income households. ⧫⧫⧫
CalHDF urges the City to amend the proposed ordinance to comport with state law. If the City should not do so, CalHDF will report the issue to the California Department of Housing and Community Development for further action.
CalHDF is a 501(c)(3) non-profit corporation whose mission includes advocating for increased access to housing for Californians at all income levels, including low-income households. You may learn more about CalHDF at www.calhdf.org.
Sincerely,
Dylan Casey
CalHDF Executive Director
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James M. Lloyd
CalHDF Director of Planning and Investigations
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