SAN ANSELMO PLANNING COMMISSION
RESOLUTION NO. 2025-02
RESOLUTION OF THE PLANNING COMMISISON OF THE TOWN OF SAN ANSELMO RECOMMENDING TOWN COUNCIL ADOPTION OF ORDINANCE AMENDMENTS TO TITLE 10 “PLANNING AND ZONING”, CHAPTER 6 “ACCESSORY DWELLING UNITS”; AND ASSOCIATED
CEQA EXEMPTION FINDINGS
WHEREAS, beginning in 2017 in response to the State’s housing crisis, the State of California adopted a series of State laws encouraging the development of Accessory Dwelling Units (“ADUs”) and Junior Accessory Dwelling Units (“JADUs”) by reducing local control over these projects; and
WHEREAS, recent amendments to State ADU/JADU law become effective January 1, 2025 and the Town desires to update its local ADU/JADU Ordinance in order to comply with said State law; and
WHEREAS, the California Department of Housing and Community Development (HCD) released an updated version of the Accessory Dwelling Unit Handbook in January 2025 to guide local jurisdictions in the implementation of State housing law; and WHEREAS, the Planning Commission desires to amend the Town’s ADU regulations, Title 10, Chapter 6 “Accessory Dwelling Units” to comply with State law and make certain clarification changes (“Ordinance Amendments”); and
WHEREAS, the Planning Commission is responsible for providing recommendations to the Town Council for proposed amendments to the Town’s Zoning Code pursuant to Government Code section 65853 et seq.; and
WHEREAS, Ordinance Amendments are exempt from the California Environmental Quality Act (“CEQA”) pursuant to Public Resources Code section 21080.17, which exempts the local adoption of ordinances regarding second units in single or multi-family residential zones, and CEQA Guideline section 15301 involving the minor alteration of existing residences involving negligible or no expansion of use beyond that already in existence; and pursuant to CEQA Guidelines section 15061(b)(3) because it can be seen with certainty that there is no possibility they would have a significant effect on the environment; the amendments make no or minimal changes to land uses, development intensities, or the rate at which development is expected to occur; and
WHEREAS, the adoption of the proposed Ordinance Amendments are the public interest and consistent with the Town’s General Plan Housing Element, which encourages the development of ADUs and JADUs; and
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WHEREAS, the Planning Commission held a duly noticed public hearing on February 3, 2025 to consider the Ordinance Amendments to the Town Municipal Code.
NOW, THEREFORE, BE IT RESOLVED that:
1. The above recitals are true and correct and incorporated as findings herein.
2. The Planning Commission of the Town of San Anselmo does hereby recommend that the Town Council adopt the proposed Ordinance Amendments as set forth in Exhibit A attached hereto.
RESOLUTION PASSED AND ADOPTED, at the regular meeting of the San Anselmo Planning Commission on the 3rd day of February, 2025, by the following vote:
AYES: Tunny, Asselstine, Koblick de Leon, Pipkin, Smith Acting Chair Heiman NOES: None
ABSTAIN: None
ABSENT: Strauss
RECUSED: None
ATTEST: _______________________________
Heidi Scoble, Planning Director
Exhibit List:
A. Ordinance Amendments
214
EXHIBIT “A”
Deleted language in strikeout and additional language in underline.
Article 1. – Accessory Dwelling Units and Junior Accessory Dwelling Units Purpose, Definitions, Permit Requirement and Exemption.
10-6.101 – Purpose. The purpose of this chapter is to provide for the creation and regulation of accessory dwelling units (ADUs) and junior accessory units (JADUs) in a manner consistent with State law including the requirements set forth in California Government Code sections 65852.2 and 65852.22.
10-6.102 – Definitions. For the purposes of this chapter the following definitions apply:
"Accessory dwelling unit" or “ADU” means an attached or a detached residential dwelling unit that provides complete independent living facilities for 1 or more persons and is located on the same lot as the proposed or existing primary residence. It shall include permanent provisions for living, sleeping, eating, cooking, and sanitation. An accessory dwelling unit also includes an efficiency unit, as defined in Section 17958.1 of the Health and Safety Code, and a manufactured home, as defined in Section 18007 of the Health and Safety Code. “Accessory structure” means a structure that is accessory and incidental to a dwelling located on the same lot.
“Attached Accessory Dwelling Unit” or “Attached ADU” means an ADU that shares a common wall with the primary dwelling unit on the lot either by being constructed as a physical expansion (addition) to the primary dwelling unit, conversion of an existing attached garage to the primary dwelling unit, or construction of a basement underneath an existing primary dwelling unit.
“Detached Accessory Dwelling Unit” or “Detached ADU” means an ADU that is constructed as a separate structure from the primary dwelling unit on the lot of by the conversion (full or partial) of an existing detached accessory structure into an ADU. “Efficiency kitchen” shall have the same meaning as defined in State law California Government Code section 65852.22, as amended from time to time and means a cooking facility with appliances and a food preparation counter and storage cabinets that are of reasonable size in relation to the unit.
“Efficiency unit” shall have the same meaning as defined in California Health and Safety Code section 17958.1, as amended from time to time and means a unit with a minimum floor area of 150 square feet.
“Junior Accessory Dwelling Unit” or “JADU” shall have the same meaning as defined in 215
State law California Government Code section 65852.22, as amended from time to time and means a unit located entirely within an existing or proposed single-family residence that is no more than 500 square feet, includes an efficiency kitchen, and includes either its own separate sanitation facilities or shares sanitation facilities with the existing or proposed single-family residence.
“Livable space” means a space in a dwelling intended for human habitation, including living, sleeping, eating, cooking, or sanitation.
“Living area” shall have the same meaning as defined in State law California Government Code section 65852.2, as amended from time to time and means the interior habitable area of a dwelling unit including basements and attics, but does not include a garage or an accessory structure.
“Multifamily dwelling” means a structure with two or more attached dwellings on a single lot.
“Nonconforming zoning condition” shall have the same meaning as defined in State law California Government Code section 65852.2, as amended from time to time and means a physical improvement on a property that does not conform with current zoning standards. “Objective standards” shall have the same meaning as defined in State law California Government Code section 65852.2, as amended from time to time and means standards that involve no personal or 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. “Passageway” shall have the same meaning as defined in State law California Government Code section 65852.2, as amended from time to time and means a pathway that is unobstructed clear to the sky and extends from a street to one entrance of the ADU. “Proposed dwelling” shall have the same meaning as defined in State law California Government Code section 65852.2 and includes a dwelling that is the subject of a permit application that meets the requirements for permitting. “Public transit” shall have the same meaning as defined in State law California Government Code section 65852.2, as amended from time to time and means a location, including, but not limited to, a bus stop or train station, where the public may access buses, trains, subways, and/or other forms of transportation that charge set fares, run on fixed routes, and are available to the public.
“Tandem parking” shall have the same meaning as defined in State law California Government Code Section 65852.2, as amended from time to time and means 2 or more automobiles are parked on a driveway or in any other location on a lot, lined up behind one 216
another.
10-6.103– ADU and JADU Approvals.
a. ADU Permit. Unless exempt from an ADU Permit pursuant to Section 10-6.103(bc) of this chapter, an ADU must receive an ADU permit in compliance with the standards and requirements set forth in this chapter.
b. ADUs are permitted on single and multi-family zoned lots, and JADUs are permitted in single-family zoned lots.
c. Exemptions from ADU Permit. The Town shall ministerially approve a building permit application for an ADU and/or JADU within a residential or mixed use zone, and no ADU permit shall be required to create any of the following. in the following instances for projects located within a residential or mixed-use zone. Projects exempt from an ADU permit under this section shall remain subject to other applicable construction-related permit requirements including but not limited to building and grading permits, and all applicable fire code requirements.
1. Interior on Single-Family Lot. One ADU and/or one JADU if the unit(s) is:
A. Within the proposed or existing space of a single-family dwelling or an existing accessory structure, plus an additional 150 square feet if required to accommodate ingress and egress;
B. Has exterior access from the proposed or existing single-family dwelling; and C. Has side and rear yard setbacks sufficient for fire safety as determined by the Ross Valley Fire Department.
D. If a JADU, the unit complies with the requirements of California Government Code section 65852.22 State law.
2. Detached on Single-Family Lot. One newly constructed detached ADU that is up to 800 square feet of floor area, with minimum 4-foot side and rear yard setbacks, in compliance with the height limitations as provided in section 10-6.301(b) of this chapter, on a lot with a proposed or existing single-family dwelling. The ADU may be combined with a JADU located on the same lot.
3. ADUs on Interior of Multifamily Dwelling Existing Multifamily Lot. Multiple ADUs within the portions of existing multifamily dwelling structures that are not used as livable space, including but not limited to, storage rooms, boiler rooms, passageways, attics, basements, or garages, if each unit complies with State building standards for dwellings. At least one ADU within an existing or proposed multifamily dwelling and up to 25% of the number of existing permitted multifamily dwelling units rounded down to the nearest whole number shall be allowed.
4. Detached ADUs on Multifamily Lot.
A.
i. Not more than two detached Multiple ADUs, not to exceed the number specified in clause (ii) or (iii) herein as applicable, located on a lot that has an existing or proposed multifamily dwelling, but are detached from that multifamily dwelling in compliance with the height limitations as provided in section 10-6.301(b) of this chapter, and side and rear yard 217
setbacks of no more than 4 feet.
ii. On a lot with an existing multifamily dwelling, not more than eight (8) detached ADUs. However, the number of ADUs allowable pursuant to this clause shall not exceed the number of existing units on the lot. iii. On a lot with a proposed multifamily dwelling, not more than two (2) detached ADUs.
B. If the existing multifamily dwelling has a rear or side yard setback of less than 4 feet, no modification to the existing multifamily dwelling shall be required as a condition of approving the ADU application if the ADU satisfies the requirements of this subparagraph.
5. Junior Accessory Dwelling Unit. A JADU satisfying the requirements of Government Code section 65852.22, as amended from time to time.
Article 2. – Procedures and General Requirements.
10-6.201 – Permit Application and Procedures. The following requirements apply to all ADUs and JADUs applications:
a. Application and Review. An application for an ADU permit shall contain such information as reasonably requested by the Town Planning and Building Departments accompanied by the appropriate fee. In addition to the ADU permit, the applicant shall obtain all other required permits including but not limited to a building permit or a grading permit. b. Ministerial Review. A permit application for an ADU and/or a JADU shall be considered and approved ministerially without discretionary review or a public hearing. The decision shall not be subject to an administrative appeal.
c. Review Timing and Contents. The Town shall approve or deny the application to create an ADU or JADU within 60 days from the date of receipt of a completed application if there is an existing single-family or multifamily dwelling on the lot. If the application to create an ADU or JADU is submitted with a permit application to create a new single-family or multifamily dwelling on the lot, the Town may delay approving or denying the application for the ADU and/or the JADU until the Town approves or denies on the permit application to create the new single-family dwelling; but the application to create the ADU or JADU must be considered without discretionary review or hearing. If the applicant requests a delay, the 60-day time period shall be tolled for the period of the delay. If the Town has not approved or denied the completed application within 60 days, the application shall be deemed approved. If an application for an ADU or JADU is denied, the Town shall 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. 10-6.202 – General Requirements for ADUs and JADUs. Unless otherwise provided for in this chapter, the following requirements apply to all ADUs and JADUs that are approved with either an ADU permit pursuant to Section 10-6.103(a) of this chapter or exempt from an ADU permit pursuant to Section 10-6.103(bc) of this chapter.
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a. Number of Units and Zoning District. One ADU and JADU is allowed on any parcel in a single-family residential or multifamily zoning district with a primary dwelling unit unless otherwise prohibited by local or State law.
b. Owner Occupancy.
1. All ADUs permitted before January 1, 2020 are subject to the owner-occupancy requirement that was in place when the ADU was created.
2. An ADU permitted on or after between January 1, 2020 and January 1, 2025 is not subject to any owner-occupancy requirement.
3. All ADUs that are permitted on or after January 1, 2025 require owner-occupancy as a place permanent residence. Owner-occupancy shall not be required if the owner is another governmental agency, land trust, or housing organization.
3. All JADUs require owner occupancy as a place of permanent residence. The owner may reside in the primary dwelling or the JADU.
c. Development Standards.
1. A two-story Attached ADU is not allowed where the primary dwelling unit is only one story.
2. At least fifty (50) percent of the common wall of the Attached ADU shall be attached to the primary dwelling unit.
d. No Separate Conveyance. No ADU or JADU may be sold or otherwise conveyed separately from the lot and the primary dwelling (in the case of a single-family lot) or from the lot and all of the dwellings (in the case of a multifamily lot), except as otherwise provided in Government Code section 66341 65852.26.
e. No Short Term Rental. An ADU or a JADU shall not be rented for less than thirty consecutive days, except as otherwise provided for in this chapter. f. Density. ADUs and JADUs shall not be considered to exceed the allowable density for the lot upon which the unit is located, and are a residential use consistent with the Town’s General Plan and zoning designation for the lot.
g. Fees and Utility Connections.
1. Impact Fees. No impact fee is allowed for an ADU that is less than 750 square feet.
For purposes of this subparagraph "impact fee" means a "fee" under California Government Code section 6600(b), except that it also includes fees specified in Government Code section 66477. "Impact fee" does not include any connection fee or capacity charge charged by a local agency, special district, or water corporation.
Any impact fee required for an ADU that is 750 square feet or larger must be charged proportionately in relation to the square footage of the primary dwelling unit.
2. Utility Connections and Fees.
A. An ADU shall not be considered by a local agency, special district, or water corporation to be a new residential use for purposes of calculating connection fees or capacity charges for utilities, including water and sewer service, unless the ADU unit was constructed with a new single-family dwelling. For purposes of providing service for water, sewer, or power, including a connection fee, a JADU shall not be considered a separate or new dwelling unit.
B. For a unit described in Section 10-6.103(bc) of this chapter, a local agency, 219
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.
C. For a unit not described in 10-6.103(bc) of this chapter a local agency, special district, or water corporation may require a new or separate utility connection directly between the ADU and the utility. Consistent with California Government Code section 66013, the connection may be subject to a connection fee or capacity charge that shall be proportionate to the burden of the proposed ADU, based upon either its square feet or the number of its drainage fixture unit (DFU) values, as defined in the Uniform Plumbing Code adopted and published by the International Association of Plumbing and Mechanical Officials, upon the water or sewer system. This fee or charge shall not exceed the reasonable cost of providing this service. h. Adequate Services. Proof of the proposed method of water supply and sewage disposal, as well as service availability from any associated electric and gas provider for the lot, must be provided and confirmed by letters of service availability from the appropriate utility service providers for the lot. The property must have existing or future legal access to these utilities.
i. Building and Safety; Nonconformities.
1. All ADUs and JADUs shall comply with all applicable building, fire, safety, and environmental regulations including Title 9 Building Regulations, Title 5 6, Chapter 8, Urban Runoff Pollution Prevention and Title 7, Chapter 12, Watercourses unless otherwise provided for in this chapter or as required by State law.
2. An ADU must comply with local building code requirements that apply to detached dwellings, except that the construction of an ADU shall not constitute a Group R occupancy change under the Town’s Building Code, as described in Section 310 of the California Building Code (Title 24 of the California Code of Regulations), unless the Town’s Public Works and Building Director makes a written finding based on substantial evidence in the record that the construction of the ADU could have a specific, adverse impact on public health and safety. Nothing in this subsection shall be interpreted to prevent the Town from changing the occupancy code of a space that was unhabitable space or was only permitted for nonresidential use and was subsequently converted for residential use pursuant to this section.
3. The Town shall not require the correction of nonconforming zoning conditions as a condition of approval for an ADU or JADU.
4. The Town shall not deny an application to create an ADU or JADU due to the correction of nonconforming zoning conditions, building code violations, or unpermitted structures that do not present a threat to public health and safety and are not affected by the construction of the unit.
j. No Passageways. No passageway shall be required in conjunction with the construction of an ADU or JADU.
k. Fire Sprinklers. The installation of fire sprinklers shall not be required in an ADU if sprinklers are not required for the primary residence. The construction of an ADU shall not trigger a 220
requirement for fire sprinklers to be installed in an existing primary dwelling or an existing multifamily dwelling, as applicable.
l. Unpermitted Accessory Dwelling Units.
1. Notwithstanding any other law, and except as otherwise provided in subdivision in subdivision (2) below, the Town shall not deny an application for an unpermitted ADU that was constructed before January 1, 2018 2020, due to either of the following:
A. The ADU is in violation of building standards pursuant to Article 1 (commencing with Section 17960) of Chapter 5 of Part 1.5 of Division 13 of the Health and Safety Code.
B. The ADU does not comply with Government Code section 65852.2 State law or any local ordinance regulating ADUs.
2. Notwithstanding subdivision (1), the Town may deny an application for an ADU subject to subdivision (1) if the Town makes a finding that correcting the violation is necessary to protect the health and safety of the public or occupants of the structure.
3. The section shall not apply to a building that is deemed substandard pursuant to Health and Safety Code section 17920.3.
m. Detached Garage Demolition. A demolition permit for a detached garage that is to be replaced with an ADU shall be reviewed with the application for the ADU and issued at the same time. The applicant shall not be required to provide written notice or post a placard for the demolition of a detached garage that is to be replaced with an ADU, unless the property is located within an architecturally and historically significant historic district. n. Deed Restriction. Prior to issuance of a building permit for a an ADU or JADU, a deed restriction shall be recorded against the title of the property in the Marin County Recorder’s office subject to the approval of the Town Attorney as to form and content, containing a reference to the deed under which the property was acquired by the owner and stating that:
1. Except as otherwise provided in California Government Code section 66341 65852.26, the ADU or JADU may not be sold separately from the primary dwelling.
2. The ADU or JADU is restricted to the maximum approved size and to other attributes allowed by this chapter.
3. The deed restriction runs with the land and may be enforced against future property owners.
4. The ADU and/or JADU may be occupied by or rented to a separate household living independently from the occupant(s) of the primary residence; provided, that the terms for separate occupancy of the accessory unit and/or primary unit shall be longer than 30 days.
o. Short Term Rental. The ADU and/or JADU may be occupied by or rented to a separate household living independently from the occupant(s) of the primary residence; provided, that the terms for separate occupancy of the accessory unit and/or primary unit shall be longer than 30 days.
p. Flood Regulations. An attached or detached ADU located in a designated floodplain shall comply with all applicable floodplain requirements in San Anselmo Municipal Code Title 7, Chapter 11. For sites within a Flood Hazard Area on the adopted Federal Emergency Management Agency Flood Insurance Rate Map, the finished floor of an ADU shall be 221
elevated at least one (1) foot above the Base Flood Elevation as "new construction" under Title 7, Chapter 11, Protection of Flood Hazard Areas, even if the project would not be considered a “substantial improvement”. The applicant shall submit an Elevation Certificate based on construction drawings with the building permit plans and a final Elevation Certificate shall be required prior to project final.
q. Urban Lot Splits and Two-Unit Housing Development. Pursuant to the authority granted in Government Code section 65852.21(f) no ADU or JADU shall be permitted on any lot in a single-family zoning district if: 1) an urban lot split has been approved pursuant to Government Code section 66411.7; and 2) a two-unit housing development has been approved for construction pursuant to Government Code section 65852.21. r. Prior conditions not applicable. This chapter supersedes any Town conditions on existing ADUs that comply with this chapter, including owner occupancy or rent control, that were imposed as conditions of approval on ADUs that the Town approved prior to the effective date of this chapter if the conditions would not apply under current regulations. The Planning Director is authorized to void recorded deed restrictions for ADUs that comply with this chapter at the request of a property owner.
10-6.203 – Violations and Enforcement. It shall be unlawful for any person to construct or maintain an ADU or JADU on property within the Town without compliance with this chapter.
The maintenance, ownership, or use of any ADU or JADU unit except as permitted in this chapter shall constitute a nuisance, subject to abatement pursuant to the Municipal Code, or any other remedy allowed in the Municipal Code and State law. All remedies are cumulative.
Article 3. – Accessory Dwelling Unit and Junior Accessory Dwelling Unit Development Standards and Requirements, Objective Standards, Parking, and Exception. 10-6.301 ADU Development Standards and Requirements. Unless exempt from an ADU permit pursuant to Section 10-6.103(bc) of this chapter, an ADU must comply with the following objective development standards to receive an ADU permit. a. Zoning Conformance. An ADU shall meet the development standards of the zoning district in which it is located except as modified by this section. b. Height. Unless otherwise provided for in this chapter, an attached or detached ADU must comply with the following height requirements.
1. A maximum height of 16 feet for a detached ADU on a lot with an existing or proposed single family or multifamily dwelling unit.
2. A maximum height of 18 feet for a detached ADU on a lot with an existing or proposed single family or multifamily dwelling unit that is within one-half of one mile walking distance of a major transit stop or a high-quality transit corridor, as those terms are defined in Public Resources Code section 21155 of the Public Resources Code, as may be amended from time to time. The Town shall also allow an additional 2 feet in height to accommodate a roof pitch on the ADU that is aligned with the roof pitch of the primary dwelling unit.
3. A maximum height of 18 feet for a detached ADU on a lot with an existing or proposed 222
multifamily, multistory dwelling.
4. A maximum height of 25 feet or the height limitation in the local zoning ordinance that applies to the primary dwelling, whichever is lower, for an ADU that is attached to a primary dwelling. An ADU under this section may not exceed 2 stories. c. Lot Size. There shall be no minimum lot size required for an ADU. d. Lot Coverage and Floor Area Ratio. The ADU shall comply with the lot coverage and floor area ratio requirements of the underlying zoning district unless otherwise required by this chapter. e. Setbacks.
1. No setbacks shall be required for the following:
A. An existing living area that is converted to an ADU or a portion thereof; B. An existing accessory structure that is converted to an ADU or a portion thereof; or
C. A structure constructed in the same location and to the same dimensions as an existing structure that is converted to an ADU or to a portion thereof.
2. A setback of no more than 4 feet from the side and rear lot lines shall be required for an ADU that is not converted from an existing structure or a new structure constructed in the same location and to the same dimensions as an existing structure.
f. Maximum and Minimum Unit Size. ADUs shall be subject to all of the following requirements related to size.
1. Except as provided in subsection (2) below, ADUs shall be limited to the following maximum sizes:
Fewer than two bedrooms 850 square feet of gross floor area Two or more bedrooms 1,000 square feet of gross floor area
2. ADUs may exceed the maximum unit sizes provided in subsection (1) above following approval through the discretionary design review process as set forth in the San Anselmo Municipal Code Title 10, Chapter 3, Article 15 Design Review. In no case shall an ADU exceed 1,200 square feet of gross floor area.
3. The gross floor area of attached or interior ADUs shall not exceed 50 percent of the existing living area (as defined in California Government Code Section 66313, as amended from time to time) of the primary residence. Notwithstanding the prior sentence, an attached or interior ADU may contain at least the maximum size set forth in Section 10-6.301(f)(1).
4. The maximum floor area square footage for an attached or detached studio or one bedroom ADU is 850 square feet. The maximum floor area square footage for an attached or detached ADU that is more than one bedroom 1,000 square feet.
5. The total floor area of an attached or detached ADU not exceed 50% of the existing or proposed primary dwelling. Notwithstanding this provision, an attached or detached ADU must be allowed at least 800 square feet of floor area.
6. The minimum floor area for an attached or detached ADU is 150 square feet, which is the minimum square footage required for an efficiency unit as defined in California Health and Safety Code section 17958.1, as may be amended from time to time.
7. An ADU may exceed the maximum sizes provided in this subsection pursuant to 223
section 10-6.305 of this chapter; provided however, the ADU shall not exceed 1,200 square feet.
g. Separate Entry, Kitchen and Bathroom. All ADUs shall contain a separate entrance, kitchen, and bathroom independent of the primary residence.
h. Exception. The Town shall not impose any requirement for a zoning clearance or separate zoning review or any other minimum or maximum size for an ADU, size based upon a percentage of the proposed or existing primary dwelling, or limits on lot coverage, floor area ratio, open space, front setbacks, and minimum lot size, for either attached or detached dwellings that does not permit at least an 800 square ADU with four-foot side and rear yard setbacks to be constructed in compliance with all other local development standards.
10-6.302 Objective Design Standards. Unless exempt from an ADU permit pursuant to Section 10-6.103(bc) of this chapter, an all ADUs must comply with the following objective standards to receive an ADU permit. Where an application does not meet the objective design standards set forth herein, the application may undergo the standard discretionary design review process as set forth in the San Anselmo Municipal Code Title 10, Chapter 3, Article 15 Design Review. a. Building Design. The materials and colors of the ADU’s exterior walls, roof, windows, and doors shall be of a complimentary material, color, and style the primary dwelling, including roof, eaves, windows, accents, and doors.
b. Landscape Design. Landscaping shall be provided around the ADU, and its location shall ensure defensible space. Fire-resistant and low-water-use plants shall be included in the landscape design. Landscaping shall be included to screen mechanical and structural elements of the ADU, including, but not limited to, foundations, retaining walls, condensers, and transformers.
c. Entrance. The entrance to the ADU shall face towards the interior of the lot and/or away from neighboring development, unless the ADU is directly accessible from an alley, public path, or public street.
d. Windows and Doors. Windows in an ADU that is located less than 10 feet from a rear or side property line shall be clerestory windows or use frosted or obscure glass. Any new door that faces an adjoining residential property located less than 10 feet from a rear or side property line shall either not include windows, or all windows must be made of opaque glass.
e. Exterior Lighting. All exterior lighting shall be low wattage, shielded, and directed downward.
f. Skylights. Where visible from off-site locations, skylights shall not have white or light opaque colored exterior lenses.
g. Historical. An ADU that includes exterior alterations or additions to a property that is listed in the California Register of Historic Places or on a local historical register shall not be approved if it may cause an adverse impact to the historical significance of the property.
There shall be no design exception to this requirement. h. Heritage Trees. No heritage tree (as defined in Title 4, Chapter 13 of the San Anselmo Municipal Code) shall be removed in conjunction with the construction of an ADU until a 224
building permit has been issued for the ADU.
10-6.303 – Parking.
a. One (1) parking space is required per ADU unless otherwise provided for in this chapter. b. Parking may be provided through tandem parking on an existing driveway. c. Off-street parking to satisfy parking requirements shall be permitted in setback areas in locations determined by the Town unless specific findings are made that parking in setback areas is not feasible based on specific site, regional, topographical, or fire and life safety conditions, which conditions shall include but are not limited to circumstances where parking would impede reasonable emergency and fire access. d. When a garage, carport, or covered parking structure, or uncovered parking space is demolished in conjunction with the construction of an ADU or converted to an ADU, it is not required that those off-street parking spaces be replaced. e. Parking Exemptions. An ADU shall be exempt from the parking requirement of this section if the unit is:
1. Located within one-half mile walking distance of a public transit stop.
2. Located within an historic district, as may be designated by the Town Council from time to time;
3. The ADU is part of the proposed or existing primary residence or an accessory structure;
4. When on-street parking permits are required but not offered to the occupant of the ADU;
5. When there is a designated car share vehicle pick up or drop off location (as defined by the California Vehicle Code) located within one block of the ADU;
6. 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, provided that the ADU or the parcel satisfies any other criteria listed in this paragraph; or
7. The unit is an attached or detached ADU that is up to 800 square feet of floor area, with minimum 4-foot side and rear yard setbacks, in compliance with the height limitations as provided in section 10-6.301(b) of this chapter, on a lot with a proposed or existing single-family dwelling.
10-6.304 JADU Development Standards and Requirements. Unless otherwise provided for in this chapter, JADUs are subject to the following objective standards:
a. Location and Number. A JADU shall be located within an existing or proposed single-family residence. For purposes of this paragraph, enclosed uses within the residence, such as attached garages, are considered a part of the proposed or existing single-family residence.
A JADU is not permitted in a detached accessory structure. One JADU is allowed per lot. If there are multiple detached single-family residential units on one lot, only one JADU is allowed.
b. Unit Size. No JADU unit shall be less than 150 feet or more than 500 square feet in size. The square footage of any shared sanitation facilities with the primary dwelling unit shall not be 225
included in the square footage calculation.
c. Access. The JADU unit shall have a separate exterior entrance from the primary dwelling unit. d. Interior Connection and Bathroom Facilities. A JADU unit may include separate bathroom facilities, or it may share such facilities with the primary dwelling unit. If a permitted JADU does not include a separate bathroom, the JADU unit shall include a separate entrance from the main entrance to the structure, with an interior entry to the main living area. Unless sharing bathroom facilities with the primary dwelling unit, a JADU is not required to have an interior connection to the primary dwelling.
e. Kitchen Facilities. The JADU shall include an efficiency kitchen, which shall include a cooking facility with appliances, and a food preparation counter and storage cabinets that are of reasonable size in relation to the size of the JADU.
f. Parking. No parking is required for a JADU.
g. Entryways. A JADU must include a separate entrance from the main entrance to the proposed or existing single-family residence.
10-6.305 Exceptions. If an ADU application does not otherwise meet the requirements in this chapter, an applicant may request an exceptions to this chapter and receive ADU approval by applying for a conditional use permit (CUP). Any exceptions approved pursuant to this section must also comply with all objective design review standards as set forth in Section 10-6.302, if applicable, and shall be reviewed through the standard discretionary CUP process. Any detached ADU approved herein shall not exceed 1,200 square feet.
Article 4. – Requirements to Eliminate ADU.
10-6.401 – Intent to Maintain Units. It is the Town's intent to preserve ADUs and discourage the conversion of ADUs for the use of the primary dwelling. To this end, the following are requirements that apply when taking actions that remove elements of an ADU. a. A building permit shall be required to remove the separate entrance or permanent provisions for eating, cooking, and sanitation in an ADU. b. No building permit shall be issued to remove permanent provisions for eating, cooking, and sanitation or the separate entrance for an ADU created by converting or demolishing a garage, carport, or covered parking structure in conjunction with the construction of an a ADU unless either: 1) the project includes restoring the garage for vehicle parking prior to the first inspection on the permit; or 2) the site has the required number of on-site parking spaces as required by the Parking Standards Table, referred to as Table 5A, of the San Anselmo Municipal Code and the spaces comply with all provisions for setbacks, siting, configuration and size.
c. No building permit shall be issued to remove permanent provisions for eating, cooking, and sanitation or the separate entrance for an ADU created with an exception to lot coverage and/or floor area ratio unless the project removes the additional lot coverage and/or floor area granted for the ADU prior to issuance of the permit or a variance is approved. d. No building permit shall be issued to remove permanent provisions for eating, cooking, and sanitation or the separate entrance for an ADU created with side or rear yard setbacks that 226
are less than required under applicable development standards unless the project includes removing the area for the ADU where the setback or a variance was approved. 227
CALIFORNIA DEPARTMENT OF HOUSING AND COMMUNITY
DEVELOPMENT
ACCESSORY DWELLING UNIT
HANDBOOK
January 2025
228
2 Table of Contents
ADUs in California ............................................................................................................................. 4 The California Department of Housing and Community Development .......................................... 6 Glossary ............................................................................................................................................. 8 Summary of Recent Changes to ADU Law..................................................................................... 13 Frequently Asked Questions........................................................................................................... 18 66323 Units.................................................................................................................................. 18 ADUs ........................................................................................................................................... 21 Bedrooms..................................................................................................................................... 21 Building Code Violations .............................................................................................................. 21 Coastal Commission .................................................................................................................... 21 Deed Restrictions......................................................................................................................... 22 Fees............................................................................................................................................. 22 Fire Protection and Fire Sprinkler Requirements ............................................................................ 23 Funding........................................................................................................................................ 24 Height Requirements.................................................................................................................... 25 Homeowners Associations (HOAs) .............................................................................................. 26 Housing Elements and Prohousing Designation........................................................................... 27 JADUs.......................................................................................................................................... 28 Local ADU Ordinances and Local Agencies ................................................................................. 30 Manufactured Homes................................................................................................................... 31 Mobilehome Parks ....................................................................................................................... 32 Multifamily ADUs.......................................................................................................................... 32 Nonconforming Zoning................................................................................................................. 33 Owner-Occupancy ....................................................................................................................... 34 Parking Requirements.................................................................................................................. 34 Permit Applications and Permitting Agencies ............................................................................... 35 Rental Terms ............................................................................................................................... 37 Sales and Separate Conveyance ................................................................................................. 37 Senate Bill 9 (SB 9) (Chapter 162, Statutes of 2021).................................................................... 37 Setbacks ...................................................................................................................................... 38 Size Requirements and Restrictions............................................................................................. 39 Solar Requirements ..................................................................................................................... 40 Tiny Homes.................................................................................................................................. 40 Types of ADUs............................................................................................................................. 41 229
3 Unpermitted Structures and ADUs ............................................................................................... 42 Utilities ......................................................................................................................................... 43 Zoning, Development, and Other Standards ................................................................................ 43 Resources ........................................................................................................................................ 46 Changes to State ADU Laws........................................................................................................ 46 AB 2533 ................................................................................................................................. 46 SB 1211 ................................................................................................................................. 47 SB 477 ................................................................................................................................... 47 AB 976 and AB 1033.............................................................................................................. 48 AB 1332 ................................................................................................................................. 49 AB 434 ................................................................................................................................... 49 AB 345 ................................................................................................................................... 49 AB 3182 ................................................................................................................................. 50 AB 68, AB 881, and SB 13 ..................................................................................................... 50 AB 587, AB 670, and AB 671 ................................................................................................. 51 Summary Table of Statutory Changes.......................................................................................... 53 230
4 ADUs in California
Accessory Dwelling Units (ADUs) and Junior Accessory Dwelling Units (JADUs) are innovative and effective options for adding much needed housing in California. Since 2016, State ADU Laws have continued to evolve to further lower barriers to the development of more affordable housing as the Legislature works to address the housing crisis across the state. As these laws change, HCD’s goal is to ensure consistency and clarity in the application of these laws through education, technical assistance, and enforcement.1 Benefits of ADUs
ADUs provide a wide range of benefits, including:
• ADUs are an affordable type of home to construct in California because they do not require paying for land, major new infrastructure, structured parking, or elevators. • ADUs can provide a source of income for homeowners.
• ADUs are often built with cost-effective wood frame construction, which is significantly less costly than homes in new multifamily infill buildings. • ADUs allow extended families to be near one another while maintaining privacy. • ADUs can provide as much living space as many newly built apartments and condominiums, and they’re suited well for individuals, couples, small families, friends, young people, and older adults.
• ADUs give homeowners the flexibility to share independent living areas with family members and others, allowing older adults to age in place.
Indeed, Californians are increasingly recognizing the benefits of ADUs, and ADUs are making a difference. Between 2016-2023, the number of ADUs permitted annually in the state grew from 1,336 to 26,924, a 20-fold increase. In 2023, ADUs comprised more than 21 percent of all homes permitted statewide.
ADUs as an Infill Development Strategy
ADUs are, by definition, created in areas that are already developed but where land may be underutilized. Moreover, restrictions on parking requirements for ADUs that are located near transit create further incentives to build ADUs, particularly in places that provide easy access to jobs and other amenities, further reducing reliance on vehicles.
As a result, ADU construction is a key infill development strategy that contributes to, among other things, reducing greenhouse gas emissions and improving air quality by reducing the distance people need to travel; reducing conversion of agricultural land, sensitive habitat, and open space for new development; reducing costs to build and maintain expensive infrastructure; and facilitating healthy and environmentally friendly active transportation. 1 This updated ADU Handbook references the law as amended by recent legislation that goes into effect on January 1, 2025.
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5 In light of changing laws around ADUs and the growing importance of this housing type, HCD has updated this ADU Handbook and continues to be committed to facilitating housing production at all income levels.
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6 The California Department of Housing and
Community Development
With the vision that one day, every California resident can live, work, and play in healthy communities of opportunity, it is the mission of HCD to provide safe, affordable homes and vibrant, inclusive, sustainable communities for all Californians. HCD accomplishes this by increasing and preserving the supply of affordable places to live in California and by creating effective solutions to the housing crisis through policy and research.
Housing Accountability Unit
California’s housing crisis has reached historic proportions despite the passage of numerous laws intended to increase the supply of housing affordable to Californians at all income levels.
As part of the 2021-2022 state budget, HCD received additional staff to grow its accountability efforts and formed the Housing Accountability Unit (HAU). While education and technical assistance are always the first step in HCD’s accountability efforts, the HAU holds jurisdictions accountable for meeting their housing element commitments and complying with state housing laws. Violations of state housing laws, including State ADU Law, may lead to consequences, including revocation of housing element certification and referral to the California Office of the Attorney General.
Technical Assistance
There may be uncertainty, or a need for education at the local level about how to comply with state law, especially as state laws evolve. HCD provides technical assistance to property owners and developers who are seeking to create ADUs, as well as to advocates, local agencies, and other interested parties.
Any questions regarding the application of State ADU Law may be submitted to HCD via the online ADU Portal. Please provide as much detail as possible in the online form. HCD may request additional information, including, but not limited to denials and communications from the local agency.
Local agencies seeking assistance or submitting an ADU ordinance to HCD, must also use the online portal.
For those experiencing technical issues with the ADU Portal, please email:
Questions beyond what this Handbook provides are encouraged to contact their local permitting agency (e.g., city or county) or private attorney.
Enforcement of State ADU Law
Since 2016, HCD has had statutory authority to review local agencies’ ADU ordinances, and as of January 1, 2024, HCD also has the authority to enforce all State ADU Laws.
HCD’s ADU team reviews local ordinances for compliance with State ADU Law and sends 233
7 findings letters and, when necessary, may escalate its enforcement. To ensure consistency, the HAU works closely with other HCD divisions.
The ADU team is committed to supporting the public, local agencies, and partner agencies with understanding and complying with State ADU Law.
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8 Glossary
66323 Units
One of the four delineated types of ADUs (and JADUs) that must be permitted pursuant to Government Code section 66323. Source: Government Code section 66323 Accessory Dwelling Unit (ADU)
An attached or a detached residential dwelling unit that provides complete, independent living facilities for one or more persons, and is located on a lot with a proposed or existing primary residence. It shall include permanent provisions for living, sleeping, eating, cooking, and sanitation on the same parcel as the single-family or multifamily dwelling is, or will be, situated.
An ADU also includes the following:
(A) An efficiency unit.
(B) A manufactured home, as defined in Section 18007 of the Health and Safety Code.
Source: Government Code section 66313, subdivision (a)
Accessory Structure
A structure that is accessory and incidental to a dwelling located on the same lot. Source:
Government Code section 66313, subdivision (b)
Applicant
The person or party responsible for the submittal of an application seeking a permit.
Application
A formal request to perform work, which includes all information as required.
Certificate of Occupancy
A document issued by local California Building and Safety departments which certifies that a commercial space or newly constructed residential building has been inspected for compliance with the California Building Standards Code and local ordinances which govern construction and occupancy. Source: 2022 California Residential Code section R110 Common Interest Development
Any of the following:
(a) A community apartment project.
(b) A condominium project.
(c) A planned development.
(d) A stock cooperative.
Source: Civil Code section 4100
Covenants, Conditions, and Restrictions (CC&Rs)
A set of rules governing the use of a certain piece of real estate in each community. “Governing documents” includes declarations, bylaws, operating rules, articles of incorporation, or articles of association, which govern the operation of the common interest 235
9 development or association. Source: Civil Code section 4150 Efficiency Dwelling Unit
A dwelling unit which contains a minimum of 150 square feet in living space, a separate closet, kitchen sink, cooking appliance, refrigerator, and a separate bathroom containing a water closet, lavatory, bathtub, or shower. Source: Government Code section 66313, subdivision (a)(1); California Building Code section 1208.4 Habitable Space
A space in a building for living, sleeping, eating, or cooking. Bathrooms, toilet rooms, closets, halls, storage or utility spaces and similar areas are not considered habitable spaces. Source: 2022 California Building Code section 202 High Quality Transit Corridor
A corridor with fixed route bus service with service intervals no longer than 15 minutes during peak commute hours. Source: Public Resources Code section 21155, subdivision (b)
Impact Fee
“Impact fee” has the same meaning as the term “fee” as defined in subdivision (b) of Section 66000, and includes the fees specified in Section 66477. “Impact fee” does not include any connection fee or capacity charge charged by a local agency, special district, or water corporation. Source: Government Code section 66324, subdivision (c)(2) Junior Accessory Dwelling Unit (JADU)
A unit that is no more than 500 square feet in size and contained entirely within a singlefamily residence. A JADU may include separate sanitation facilities or may share sanitation facilities with the existing structure. Source: Government Code section 66313, subdivision (d)
Livable Space
A space in a dwelling intended for human habitation, including living, sleeping, eating, cooking, or sanitation. Source: Government Code section 66313, subdivision (e) Living Area
The interior habitable area of a dwelling unit, including basements and attics, but does not include a garage or any accessory structure. Source: Government Code section 66313, subdivision (f)
Local Agency
A city, county, or city and county, whether general law or chartered. Source: Government Code section 66313, subdivision (g)
Major Transit Stop
A site containing any of the following:
(a) An existing rail or bus rapid transit station.
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10 (b) A ferry terminal served by either a bus or rail transit service. (c) The intersection of two or more major bus routes with a frequency of service interval of 15 minutes or less during the morning and afternoon peak commute periods.
Source: Public Resources Code section 21064.3
Manufactured Home
A structure that was constructed on or after June 15, 1976, is transportable in one or more sections, is eight body feet or more in width, or 40 body feet or more in length, in the traveling mode, or, when erected on site, is 320 or more square feet, is built on a permanent chassis and designed to be used as a single-family dwelling with or without a foundation when connected to the required utilities, and includes the plumbing, heating, air conditioning, and electrical systems contained therein. Source: Health and Safety Code section 18007, subdivision (a)
Ministerial Approval
Considered and approved without discretionary review or a hearing. Source: Government Code section 66317, subdivision (a)
Multifamily Dwelling
For the purposes of State ADU Law, a structure with two or more attached dwellings on a single lot is considered a multifamily dwelling. Multiple detached single-family dwellings on the same lot are not considered multifamily dwellings for the purposes of State ADU Law.
Nonconforming Zoning Condition
A physical improvement on a property that does not conform with current zoning standards.
Source: Government Code section 66313, subdivision (h)
Objective Standards
Standards that involve no personal or 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 applicant or proponent and the public official prior to submittal.
Source: Government Code section 66313, subdivision (i)
Passageway
A pathway that is unobstructed, clear to the sky, and extends from a street to one entrance of the ADU. Source: Government Code section 66313, subdivision (j) Permitting Agency
Any entity that is involved in the review of a permit for an ADU or JADU, and for which there is no substitute, including, but not limited to, applicable planning departments, building departments, utilities, and special districts. Source: Government Code section 66313, subdivision (k)
Planned Development
A real property development other than a community apartment project, a condominium project, or a stock cooperative, having either or both of the following features:
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11 (a) Common area that is owned either by an association or in common by the owners of the separate interests who possess appurtenant rights to the beneficial use and enjoyment of the common area.
(b) Common area and an association that maintains the common area with the power to levy assessments that may become a lien upon the separate interests in accordance with Article 2 (commencing with Section 5650) of Chapter 8.
Source: Civil Code section 4175
Proposed Dwelling
A dwelling that is the subject of a permit application and meets the requirements for permitting. Source: Government Code section 66313, subdivision (l) Public Transit
A location, including, but not limited to, a bus stop or train station, where the public may access buses, trains, subways, and other forms of transportation that charge set fares, run on fixed routes, and are available to the public. Source: Government Code section 66313, subdivision (m)
Qualified Buyer
Persons and families of low or moderate income, as defined in Section 50093 of the Health and Safety Code. Source: Government Code section 66340, subdivision (a); Health and Safety Code section 50093
Qualified Nonprofit Corporation
A nonprofit corporation organized pursuant to Section 501(c)(3) of the Internal Revenue Code that has received a welfare exemption under Section 214.15 of the Revenue and Taxation Code for properties intended to be sold to low-income families who participate in a special no-interest loan program. Source: Government Code section 66340, subdivision (b) Reasonable Restrictions
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. Source:
Civil Code section 4751, subdivision (b), and Civil Code section 714.3, subdivision (b) Single-Family Dwelling
For the purposes of State ADU Law, a single-family dwelling is a single unit providing complete, independent living facilities for one family, including permanent provisions for living, sleeping, eating, cooking, and sanitation, and existing as a separate interest of real property, such as a detached single-family dwelling or a townhouse.
Substandard Building
Any building or portion thereof, or premises on which the building is located, in which there exists any of a long list of conditions that endanger the life, limb, health, property, safety, or welfare of the public or occupants thereof. Source: Health and Safety Code section 17920.3
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12 Tandem Parking
Two or more automobiles that are parked on a driveway or in any other location on a lot, lined up behind one another. Source: Government Code section 66313, subdivision (n) 239
13 Summary of Recent Changes to ADU Law
In Government Code section 66310,
subdivision (d), the California Legislature
declared that allowing ADUs in zones
that allow single-family and multifamily
uses provides additional rental housing
and is an essential component in
addressing California’s housing needs.
Over the years, State ADU Law has been
revised to improve its effectiveness in
creating more housing units. Major
changes to State ADU Law, effective
January 1, 2023, January 1, 2024, and
January 1, 2025, further reduced barriers
to the development of ADUs and JADUs.
Within this context, HCD developed –
and continues to update – this Handbook to assist local governments, homeowners, attorneys, architects, and the public in understanding and applying the requirements of state law. Below is a summary of recent legislation that amended State ADU Law.
Please visit https://leginfo.legislature.ca.gov for the complete statutory changes.
All local permitting agencies and interested parties should review the amendments to California law, effective January 1, 2023, 2024, and 2025, regarding the creation of ADUs and JADUs.
2022 legislation includes the following changes to State ADU Law (effective January 1, 2023):
Assembly Bill (AB) 2221 (Chapter 650, Statutes of 2022, Section 1) and Senate Bill (SB) 897 (Chapter 664, Statutes of 2022, Sections 2.5, 4, 5, and 6) built upon recent changes to State ADU and JADU Law and further addressed barriers to the development of ADUs and JADUs.
Due to SB 897 being chaptered after AB 2221, section 2.5 of SB 897 incorporated amendments to ADU Law proposed by both SB 897 and AB 2221. • Objective Standards. Requires local agencies to only impose objective standards on ADUs, which “involve no personal or 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” of an ADU permit application. (Gov. Code, § 66313, subd. (i). See also Gov. Code, §§ 66314, subd. (b)(1); 66323, subd. (g).) • Detached Garages. Allows ADUs detached from the proposed or existing primary dwelling, including in detached garages (Gov. Code, § 66314, subd. (d)(3)). • Occupancy Change. Provides that the construction of an ADU does not constitute a 240
14 Group R occupancy change under the local building code, unless the local agency makes a written finding based on substantial evidence in the record that the construction of the ADU could have a specific, adverse impact on public health and safety (Gov. Code, § 66314, subd. (d)(8)).
• Fire Sprinklers. Precludes ADU construction from triggering a requirement that fire sprinklers be installed in the existing primary dwelling (Gov. Code, § 66314, subd. (d)(12)). • Permitting Process. Requires a permitting agency to either approve or deny (replacing the former language “act on”) an application to create or serve an ADU or JADU within 60 days from when a completed application is received, if there is an existing single-family or multifamily dwelling on the lot (Gov. Code, §§ 66317, subd. (a); 66320, subd. (a); 66335, subd. (a)(2)).
• Concurrent Permitting. Clarifies that permitting agencies may concurrently approve or deny a proposed ADU and new single-family or multifamily dwelling when submitted simultaneously for permitting. The application for the ADU shall be considered without discretionary review or hearing. Clarifies that permitting agencies may concurrently approve or deny a proposed JADU and new single-family dwelling when submitted simultaneously for permitting. (Gov. Code, §§ 66317, subd. (a); 66320, subd. (a); 66335, subd. (a)(3).) • Permitting Agency Denials. Obligates a permitting agency, when it denies an ADU or JADU application, to “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” within 60 days from when a completed application is received. (Gov. Code, §§ 66317, subd. (b); 66320, subd. (b); 66335, subd. (b).) • Demolition Permits. Adds a requirement for a local agency to review and issue a demolition permit for “a detached garage that is to be replaced with an ADU” at the same time it reviews, and issues permits for, the ADU construction. (Gov. Code, § 66314, subd. (e).) Also prohibits permitting agencies requiring applicants to “provide written notice or post a placard for the demolition of a detached garage ... unless the property is located within an architecturally and historically significant district.” (Gov. Code, § 66314, subd. (f).) • Zoning & Setbacks. Prohibits a local agency from requiring “a zoning clearance or separate zoning review or any other minimum or maximum size for an accessory dwelling unit, size based upon a percentage of the proposed or existing primary dwelling, or limits on lot coverage, floor area ratio, open space, front setbacks, and minimum lot size, for either attached or detached dwellings that does not permit at least an 800 square foot accessory dwelling unit with four-foot side and rear yard setbacks to be constructed in compliance with all other local development standards.” (Gov. Code, § 66321, subd. (b)(3).) • Detached ADU Height Limitations. Establishes a base height limitation of 16 feet for detached ADUs (Gov. Code, § 66321, subd. (b)(4)(A)). Increases the maximum height limitation on a detached ADU to 18 feet if the ADU is “either within a half-mile walking distance of a major transit stop or a high-quality transit corridor” and provides for an 241
15 additional two feet for roof pitch to align with the roof pitch of the primary dwelling unit.” (Gov. Code, §§ 66321, subd. (b)(4)(B); 66323, subd. (a)(2)(B).) Increases the height to 18 feet for a detached ADU that is “on a lot with an existing or proposed multifamily, multistory dwelling.” (Gov. Code, § 66321, subd. (b)(4)(B).)
• Attached ADU Height Limitations. Establishes the maximum height limitation that may be imposed by a local agency on an attached ADU to 25 feet, or the existing primary dwelling height limit if lower than 25 feet. Does not require a local agency to allow an ADU to exceed two stories (Gov. Code, § 66321, subd. (b)(4)(D)).
• Parking Standards. Prohibits local agencies from imposing parking in a number of specific circumstances (Gov. Code, § 66322, subd. (a)).
• Zoning Nonconformance & Building Code Violations. Prohibits local agencies from denying an ADU permit due to the correction of “nonconforming zoning conditions, building code violations, or unpermitted structures that do not present a threat to public health and safety and are not affected by the construction of the accessory dwelling unit.” (Gov. Code, § 66322, subd. (b).) The prohibition was also added to Government Code section 66336 to apply to JADUs.
• Multifamily Dwellings. Prohibits a permitting agency from requiring “any modification of the existing multifamily dwelling as a condition of approving the application to construct an accessory dwelling unit” if the existing multifamily dwelling has “a rear or side setback of less than four feet...” (Gov. Code, § 66323, subd. (a)(4)(B)). • Permitting Agency Definition. Adds definition of a permitting agency as “any entity that is involved in the review of a permit for an accessory dwelling unit or junior accessory dwelling unit and for which there is no substitute, including, but not limited to, applicable planning departments, building departments, utilities, and special districts.” (Gov. Code, § 66313, subd. (k).)
• Unpermitted ADUs. Precludes a local agency from denying a permit for an unpermitted ADU that was constructed before January 1, 2018, because the ADU violates building standards or because the ADU does not comply with State ADU Law or a local ordinance. (Gov. Code, § 66332, subd. (a).) This prohibition does not apply if the local agency makes a finding that “correcting the violation is necessary to protect the health and safety of the public or occupants of the structure” (Gov. Code, § 66332, subd. (b)) or to a building that is deemed substandard pursuant to Health and Safety Code section 17920.3 (Gov. Code, § 66332, subd. (c)).
• Enclosed Uses. Considers enclosed uses within the residence, such as attached garages, to be “a part of the proposed or existing single-family residence” for the purposes of JADUs (Gov. Code, § 66333, subd. (d)).
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16 2023 legislation includes the following changes to State ADU Law (effective January 1, 2024):
AB 976 (Chapter 751, Statutes of 2023) and AB 1033 (Chapter 752, Statutes of 2023) made changes to State ADU Law. AB 1332 (Chapter 759, Statutes of 2023) added Government Code section 65852.27 to expedite the approval of ADUs. AB 434 (Chapter 740, Statutes of 2023) modified Government Code section 65585 to require enforcement of State ADU Law, ADU amnesty laws, and lot split / duplex laws, among others. • Owner Occupancy. Removes the existing 2025 sunset of the prohibition on owneroccupancy requirements and instead mandates no owner-occupancy requirement for ADUs (Gov. Code, § 66315). Authorizes a local agency to adopt a local ordinance to allow the separate conveyance of the primary dwelling unit and ADU(s) as condominiums (Gov.
Code, § 66342).
• Pre-Approved ADU Plans. Requires the local agency to develop a program for the preapproval of ADU plans by January 1, 2025. The local agency shall accept ADU plan submissions for preapproval from any party and shall approve or deny applications pursuant to standards established in Government Code sections 66314-66332. The local agency shall post preapproved ADU plans and the contact information of the applicant on the local agency’s website. The local agency may also post plans pre-approved by other local or state agencies. (Gov. Code, § 65852.27.)
• Enforcement Authority. Amends Government Code section 65585, subdivision (j), by adding to the list of laws about which HCD is authorized to notify a local jurisdiction or the Attorney General when the local jurisdiction fails to comply with those laws, including Chapter 13 (commencing with Section 66310) and Government Code sections 65852.21, 65852.24, 65852.28, 65913.4.5, and 66411.7, among others. 2024 legislation includes the following changes to State ADU Law (effective March 27, 2024, and January 1, 2025):
SB 477 (Chapter 7, Statutes of 2024) made changes to the numbering of the government code sections related to ADU and JADU Law. AB 2533 (Chapter 834, Statutes of 2024) and SB 1211 (Chapter 296, Statutes of 2024) made changes to State ADU Law. • Updated Government Code Sections. Government Code sections related to ADU and JADU law were updated from 65852.2, 65852.22, 65852.23, and 65852.26 to Government Code sections 66310-66342.
• Unpermitted ADUs and JADUs. Changes the date from January 1, 2018, to January 1, 2020, such that a local agency is precluded from denying a permit for an unpermitted ADU that was constructed before January 1, 2020, because the ADU violates building standards • JADU Separate Entrance. Requires a JADU without a separate bathroom to “include a separate entrance from the main entrance to the proposed JADU, with an interior entry to the main living area.” (Gov. Code, § 66333, subd. (e)(2).) 243
17 or because the ADU does not comply with State ADU Law or a local ordinance. (Gov.
Code, § 66332, subd. (a).) A local agency shall inform the public about the provisions of this section through public information resources, including permit checklists and the local agency’s internet website, which shall include both of the following: (1) a checklist of the conditions specified in Section 17920.3 of the Health and Safety Code that would deem a building substandard, and (2) information that, before applying for a permit, the homeowner may obtain a confidential third-party code inspection from a licensed contractor to determine the unit’s existing condition or potential scope of building improvements before applying for a permit. (Gov. Code, § 66332, subd. (d)(1), (d)(2).) • Objective Standards. Prohibits a local agency from imposing any objective development standards on 66323 Units that are not authorized by the provisions of Government Code section 66323, subdivision (a).
• Livable Space. Defines “livable space” as a space in a dwelling intended for human habitation, as the term appears in Government Code sections 66313, subdivision (e), and 66323, subdivision (a)(3)(A).
• Uncovered Parking. Specifies that uncovered, off-street parking spaces demolished in conjunction with the construction of an ADU do not need to be replaced. • Detached ADUs. Authorizes up to eight detached ADUs on a lot with an existing multifamily dwelling, provided that the number of ADUs does not exceed the number of existing units on the lot.
For additional summaries of ADU legislation, please see the Resources section. 244
18 Frequently Asked Questions
66323 Units
What are “66323 Units”?
HCD uses the term “66323 Units” to refer to ADUs and JADUs that are created pursuant to Government Code section 66323. They have also been referred to as “State mandated” or “State exempt” ADUs. Government Code section 66323 creates four categories of ADUs (and JADUs) that must be approved ministerially and are not subject to standards set forth in Government Code sections 66314-66322. For example, 66323 Units do not have to comply with lot coverage, front setbacks, and design standards. However, these ADUs must comply with building code and health and safety requirements for dwellings. The four categories are:
1. Single-Family Converted ADUs and JADUs
One ADU per lot is permitted within the converted space of a proposed or existing single-family dwelling or accessory structure. This type of ADU must have exterior access and setbacks for fire and safety but is not subject to a four-foot side and rear yard setback. (Gov. Code, § 66323, subd. (a)(1).)
ADUs converted from accessory structures are eligible for a 150 square-foot expansion to accommodate ingress and egress. For example, if a second story from a singlefamily dwelling is converted into an ADU, a stairwell of not more than 150 square feet could be added, among other types of ingress and egress configurations that comply with the local building code. (Gov. Code, § 66323, subd. (a)(1)(A).) In addition, one JADU per lot is permitted within the proposed or existing space of a single-family dwelling or accessory structure and must have exterior access, side and rear setbacks for fire and safety. (Gov. Code, § 66323, subd. (a)(1).) JADUs must also comply with the provisions of JADU Law found in Government Code sections 66333- 66339. For the purposes of constructing a JADU, attached garages are part of a singlefamily dwelling. (Gov. Code, § 66333, subd. (d).) For more information, please see the Handbook section on JADUs.
2. Single-Family Detached ADUs
One detached new construction ADU that does not exceed four-foot side and rear yard setbacks is permitted on lots with an existing or proposed single-family dwelling (Gov.
Code, § 66323, subd. (a)(2)). The maximum unit size is 800 square feet with a height limitation of 16, 18, or 20 feet depending on conditions specified in Government Code section 66321, subdivision (b)(4). (Gov. Code, § 66323, subd. (a)(2)(B).)
3. Multifamily Converted ADUs
ADUs may be created within the portions of existing multifamily structures that are not used as livable space (Gov. Code, § 66323, subd. (a)(3)(A)). Local agencies shall allow 245
19 at least one ADU within an existing multifamily dwelling and up to 25 percent of the existing multifamily dwelling units (Gov. Code, § 66323, subd. (a)(3)(B)). Examples of structures that are not used as livable space include, but are not limited to: storage rooms, boiler rooms, passageways, attics, basements, or garages (Gov. Code, § 66323, subd. (a)(3)(A)).
4. Multifamily Detached ADUs
Up to two detached ADUs are allowed on a lot that has a proposed multifamily dwelling, or up to eight detached ADUs are allowed on a lot with an existing multifamily dwelling, not to exceed the number of existing units on the lot. These ADUs are subject to fourfoot rear and side yard setbacks and height limits of 16, 18, or 20 feet depending on conditions specified in Government Code section 66321, subdivision (b)(4). (Gov. Code, § 66323, subd. (a)(4)(A).) A local agency may not require that a setback be modified for an existing multifamily dwelling with setbacks less than four feet as a condition of ADU application approval (Gov. Code, § 66323, subd. (a)(4)(B)).
The local agency must allow the four categories of ADUs listed above to be combined as allowed by the site and lot conditions. For example, pursuant to Government Code 66323, subdivision (a), local governments must allow units created pursuant to subparagraphs (1) and (2) together or (3) and (4) together. This means that on single-family lots, local agencies must allow at least one ADU constructed from existing space, one JADU, and one newly constructed detached ADU. For multifamily lots, local agencies must permit at least one ADU constructed from existing non-livable space (or up to 25 percent of the number of multifamily units), and two detached ADUs.
Allowable 66323 ADU Combinations
All formats listed below may be combined as explained in the preceding section Single-Family
Primary Dwelling
Multifamily
Primary Dwelling
Gov. Code, §
66323, subd.
(a)(1)
ADU
constructed
from
proposed or
existing space
• Sometimes referred to as
“Conversions,” “Interior,”
“Created within.”
• May expand 150 square feet
from the existing accessory
structure for ingress and egress.
• Must have exterior access.
Does not apply
Gov. Code, §§
66323, subd.
(a)(1);
66333-66339
JADUs
• Created within existing or
proposed dwelling.
• 500 square-foot maximum.
• May be created from within
attached garage.
Does not apply
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20 Gov. Code, §
66323, subd.
(a)(2)
New
construction
detached
• May be in front setback.
• 800 square-foot maximum. Does not apply
Gov. Code, §
66323, subd.
(a)(3)(A)
Constructed
in existing
space not
used as
livable
Does not apply
• Existing non-livable space (e.g., gyms,
enclosed parking, etc.) within the
multifamily structure.
• Allows at least one ADU or up to 25% of
existing primary units.
Gov. Code, §
66323, subd.
(a)(4)
Detached
from primary
dwelling
Does not apply
• Up to two units detached from proposed
primary dwelling, or
• Up to eight units detached from existing
primary dwelling, not to exceed the number
of existing units on the lot.
• Four-foot side and rear setbacks.
What design, zoning, or other local standards can be imposed on 66323 Units? A local agency may not impose development or design standards, including both local standards and standards found in State ADU Law, on 66323 Units that are not specifically listed in Government Code section 66323. (Gov. Code, § 66323, subds. (a), (b).) This includes, but is not limited to, parking, height, setbacks, or other zoning provisions (e.g., lot size, open space, floor area ratio, etc.).
Additionally, rentals of 66323 ADUs must be for terms longer than 30 days. (Gov. Code, § 66323, subd. (e).) Fire sprinklers are not required for the ADU if not required for the primary residence, and the construction of an ADU may not trigger the requirement for fire sprinklers in an existing multifamily dwelling. (Gov. Code, § 66323, subd. (d).) Can a 66323 ADU created by converting an existing accessory structure be expanded? Yes. An ADU created within the existing space of an accessory structure can be expanded beyond the physical dimensions of the structure up to 150 square feet solely for the purpose of accommodating ingress and egress. (Gov. Code, § 66323, subd. (a)(1)(A).) An example is the construction of a staircase to reach a second story ADU. The ADUs shall conform to setbacks sufficient for fire and safety. (Gov. Code, § 66323, subd. (a)(1)(C).) NOTE: A JADU may be created within the walls of a single-family residence and not within an accessory structure. JADUs may not be expanded beyond the existing dimensions of the single-family dwelling.
For more information regarding 66323 multifamily accessory units, please see Multifamily ADUs.
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21 ADUs
What is an ADU?
An ADU is accessory to a primary residence and has complete independent living facilities for one or more persons. ADUs are either “detached from,” “attached to,” or located within the proposed or existing primary dwelling. This includes attached garages, storage areas or similar spaces, and accessory structures. The ADU can also be detached from the proposed or existing primary dwelling, including detached garages, provided it is located on the same lot. (Gov. Code. §§ 66313, subd. (a); 66314, subd. (d)(3).)2 Bedrooms
Can a limit on the number of bedrooms in an ADU be imposed? A limit on the number of bedrooms could be construed as a discriminatory practice towards protected classes, such as familial status, and would be considered a constraint on the development of ADUs (Gov. Code, § 65008). Building code standards for minimum bedroom size still apply.
Can an ADU have no bedrooms?
A limit on the number of bedrooms could be construed as a discriminatory practice towards protected classes, such as familial status, (Gov. Code, § 65008) and could also unreasonably restrict the ability of homeowners to create ADUs (Gov. Code, § 66311). Building code standards for minimum bedroom size still apply.
Building Code Violations
Can an ADU application be denied due to building code violations? An ADU application pursuant to Government Code section 66314 may be denied due to building code violations on the primary unit only if the violations present a threat to public health and safety and are affected by the construction of the ADU (Gov. Code, § 66322, subd. (b)). However, all ADUs must comply with building code and health and safety requirements for dwellings.
Coastal Commission
Do state ADU laws apply to jurisdictions located in the California Coastal Zone? Yes. ADU laws apply to jurisdictions in the California Coastal Zone, but do not alter or lessen the effect or application of Coastal Act resource protection policies (Gov. Code, § 66329).
Coastal localities should seek to harmonize the goals of protecting coastal resources and addressing housing needs of Californians. For example, where appropriate, localities should amend Local Coastal Programs for California Coastal Commission review to comply with the California Coastal Act and new State ADU Laws. For more information, see the California 2 Note that certain federal financing programs mentioned in the section on “Funding,” below, may have different definitions of an ADU.
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22 Coastal Commission 2020 Memo and reach out to the local Coastal Commission district office.
Deed Restrictions
Can an affordable housing deed restriction be imposed on an ADU? No. A local agency cannot impose a deed restriction on an ADU. Government Code section 66315 states, “Section 66314 establishes the maximum standards that a local agency shall use to evaluate a proposed accessory dwelling unit on a lot that includes a proposed or existing single-family dwelling. 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.” Section 66314, subdivision (b)(1) allows for local objective standards, but the examples provided all relate to design and development standards (e.g., parking, height, setback, landscape, maximum size of a unit). A deed restriction is not such a standard and thus cannot be imposed.
Can a deed restriction be imposed on a JADU?
Yes. A local agency may adopt an ordinance for the creation of JADUs (Gov. Code, § 66333).
That ordinance must “[r]equire the recordation of a deed restriction” that includes only a prohibition on the sale of the JADU separate from the sale of the single-family residence and a restriction on the size and attributes of the JADU that conforms with state law (Gov. Code, § 66333, subds. (c)(1), (c)(2)).
Fees
What types of fees are considered impact fees?
Impact fees charged for the construction of ADUs must be determined in accordance with the Mitigation Fee Act and include any monetary exaction other than a tax or special assessment that is charged by a local agency in connection with the approval of an ADU for the purpose of defraying all or a portion of the cost of public facilities relating to the ADU. (Gov. Code, §§ 66324, subd. (a); 66000.) A local agency, special district, or water corporation shall not consider ADUs as a new residential use for the purposes of calculating connection fees or capacity charges for utilities, including water and sewer services. However, these provisions do not apply to ADUs that are constructed concurrently with a new single-family home. (Gov.
Code, § 66324, subds. (b), (d).)
Can impact fees be charged for an ADU less than 750 square feet? No. An ADU is exempt from incurring impact fees from local agencies, special districts, and water corporations if it is less than 750 square feet. If an ADU is 750 square feet or larger, impact fees shall be charged proportionately in relation to the square footage of the ADU to the square footage of the primary dwelling unit. (Gov. Code, § 66324 subd. (c)(1).) In this specific instance, impact fees also include Quimby fees specified in Government Code section 66477 (Gov. Code, § 66324 subd. (c)(2)).
For ADUs that include a 150 square-foot exterior expansion, the 150 square feet count towards the 750 square-foot limit. For example, a 700 square-foot interior conversion ADU with 249
23 a 150 square-foot exterior expansion for ingress and egress would count as an 850 squarefoot ADU for the purposes of calculating fees, thus triggering the proportionate fee requirement of Government Code section 66324, subdivision (c).
Can school districts charge impact fees?
Yes. School districts are authorized to, but do not have to, levy impact fees for ADUs larger than 500 square feet pursuant to Section 17620 of the Education Code and the Mitigation Fee Act (Gov. Code, § 66000). ADUs less than 500 square feet are not subject to school impact fees. Local agencies are encouraged to coordinate with school districts to carefully weigh the importance of promoting ADUs and to ensure appropriate nexus studies are conducted on fees to facilitate construction or reconstruction of adequate school facilities, as required by the Mitigation Fee Act. Local agencies should not withhold the issuance of a permit to create an ADU or JADU due to the imposition of school fees.
Can I still be charged water and sewer connection fees? ADUs constructed from existing space and JADUs shall not be considered by a local agency, special district, or water corporation to be a new residential use for purposes of calculating connection fees or capacity charges for utilities, unless constructed concurrently with a new single-family dwelling (Gov. Code, § 66324, subd. (b)). The connection fee or capacity charge shall be proportionate to the burden of the proposed ADU, based on its square footage or plumbing fixtures as compared to the primary dwelling (Gov. Code, § 66324, subd. (e)).
Fire Protection and Fire Sprinkler Requirements
Can fire sprinklers be required for ADUs?
Only when sprinklers are required for the existing primary residence. Installation of fire sprinklers shall not be required in attached, detached, or converted ADUs if sprinklers are not required by building codes for the existing primary residence. For example, a detached singlefamily home designed and constructed decades ago would not have been required to have fire sprinklers installed under the applicable building code at the time. However, if the same primary dwelling recently underwent significant alteration and is now required to have fire sprinklers, any ADU created after that alteration must be provided with fire sprinklers.
Additionally, the construction of an ADU under this code section shall not trigger a requirement for fire sprinklers for the primary residence. Finally, if a primary dwelling currently does not have fire sprinklers, and an attached ADU is proposed which would trigger fire sprinkler requirements due to the increase in livable space, that requirement shall not be imposed upon the primary dwelling unit. (Gov. Code, §§ 66314, subd. (d)(12); 66323, subd. (d).) What is “Proportionality”?
“Proportionality” is some amount in relation to a total amount, in this case, an impact fee for a single-family dwelling. For example, a 2,000 square-foot primary dwelling with a proposed 1,000 square-foot ADU could result in 50 percent of the impact fee that would be charged for a new primary dwelling on the same site. (Gov. Code, § 66324, subd. (c)(1).)
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24 Funding
Is there financial assistance or funding available for ADUs? Possibly. While at the time of this writing the funds have been exhausted, the California Housing Finance Agency’s (CalHFA) ADU Grant Program provided up to $40,000 in assistance to reimburse qualifying homeowners for predevelopment costs necessary to build an ADU or JADU on a lot with an owner-occupied single-family dwelling unit. The ADU Grant Program was intended to create more housing units in California by providing a grant to reimburse qualifying homeowners for predevelopment costs. Predevelopment costs include, but are not limited to, architectural designs, permits, soil tests, impact fees, property surveys, and energy reports.
Some local agencies are creating funding opportunities for ADU/JADU predevelopment and construction costs, or they are waiving fees.
For local agencies wanting to apply for funding for ADUs and JADUs, some of HCD’s funding programs, such as the CalHome Program, the Permanent Local Housing Allocation program, the Prohousing Incentive Program, and the Local Housing Trust Fund Program, do include funding for these housing types as eligible activities.
For more information on local and state funding opportunities for ADU/JADU predevelopment or construction, or funding options for local agencies, please see the Grants and Funding section of our ADU webpage: https://www.hcd.ca.gov/policy-and-research/accessory-dwellingunits.
The Federal Housing Administration (FHA), Freddie Mac, and Fannie Mae also provide loans to support ADUs. The links below include information on these finance programs, including relevant definitions and criteria.
FHA
The FHA recently expanded access to mortgage financing for homes that have or will include ADUs. Specifically, the updated loan policies allow for the inclusion of rental income from the ADU in the borrower’s qualifying income and would allow more borrowers to qualify for FHA financing for properties with ADUs. This includes the 203(k) Rehabilitation loan. Note that the 203(k) Rehabilitation loan may only be used to construct an attached ADU.
For more information on the updated policies, please reference the FHA Single Family Housing Policy Handbook at https://www.hud.gov/sites/dfiles/OCHCO/documents/40001-hsghupdate15-052024.pdf, or the 2023 Mortgagee Letter that includes specific ADU finance changes in the handbook https://www.hud.gov/sites/dfiles/OCHCO/documents/2023- 17hsgml.pdf. Interested parties should look to HUD’s website for any updates.
Freddie Mac
Freddie Mac now offers several options for adding an ADU to an existing home and financing a purchase with the intention to rent or build an ADU. This includes allowing rental income from ADUs to be included in qualified income for a loan.
251
25 For more information, please visit https://sf.freddiemac.com/docs/pdf/fact-sheet/adu-factsheet.pdf.
Fannie Mae
Fannie Mae now offers financing options for adding an ADU to an existing property, building a home with an ADU using Construction-to-Permanent Financing, and buying a home with an existing ADU.
For more information, please visit https://singlefamily.fanniemae.com/originatingunderwriting/mortgage-products/accessory-dwelling-units.
Height Requirements
Is there a limit on the height of an ADU?
There is no height limit contained in State ADU Law, but local agencies may impose height limits pursuant to Government Code section 66321, subdivision (b)(4). A local agency may impose a height limit by adopting a compliant ADU ordinance.
A local agency may not impose a height limit that is less than the following:
Detached ADUs
16 feet on a lot with a proposed or existing single-family or multifamily dwelling unit (Gov.
Code, § 66321, subd. (b)(4)(A)).
18 feet on a lot with an existing or proposed single-family or multifamily dwelling, including an additional 2 feet to accommodate roof pitch that aligns with the primary dwelling, when the lot is a half-mile from a major transit stop or high-quality transit corridor (Gov. Code, § 66321, subd. (b)(4)(B)). Please see the ADU Glossary for definitions of these terms. 18 feet height on a lot with an existing or proposed multifamily, multistory dwelling (Gov. Code, § 66321, subd. (b)(4)(C)).
If a detached two-story ADU can be built according to the height allowances required under State ADU Law while remaining compliant with the building code, a local agency cannot deny an ADU application to create a two-story ADU, irrespective of the underlying zoning that might restrict a primary dwelling to one story. (Gov. Code, §§ 66321, subd. (b)(4)(D); 66314, subd. (d)(8).)
Attached ADUs
25 feet or the height limitation that applies to the primary dwelling in the local zoning ordinance, whichever is lower (Gov. Code, § 66321, subd. (b)(4)(D)). 252
26 Is there a limit on the number of stories of an ADU? There is no limit on the number of stories contained in State ADU Law. A local agency must allow at least two stories, and an attached ADU may be built to the height of the zoning for the primary dwelling or up to 25 feet, whichever is lower. (Gov. Code, § 66321, subd. (b)(4)(D).) Are there tools available to determine if a project qualifies for 18 feet in height? The California State Geoportal features an interactive map and searchable database to assess whether any California address is within a High-Quality Transit Corridor (HQTC) (as described in Public Resources Code sections 21155, 21064.3, and 21060.2). This can assist with determining if your projects are eligible for an extra two feet in height. However, the State ADU Law does not designate a definitive resource for making HQTC proximity determinations.
Applicants should go to their Metropolitan Planning Organizations first to find out if they are in a HQTC. If there is not one in their area, then they should go to their local agency.
Homeowners Associations (HOAs)
Can CC&Rs prohibit the construction or use of an ADU or JADU? No. Sections 714.3 and 4751 of the Civil Code nullify covenants, conditions, and restrictions (CC&Rs) that either effectively prohibit or unreasonably restrict the construction or use of an ADU or JADU on lots zoned to permit single-family residential uses. Such CC&Rs, including operating rules, are void and unenforceable. Applicants who encounter prohibitions of ADUs and JADUs within CC&Rs, whether implicit or explicit, are encouraged to reach out to their local agency.
What restrictions can be placed on an ADU or JADU?
HOAs may impose some limited objective standards on an ADU or JADU, such as requiring, within reason, specific materials, architectural styles, or other design and aesthetic restrictions.
However, these standards may not be more stringent than State ADU Law and thereby unreasonably increase the cost to construct or effectively prohibit or extinguish the ability to create or serve an ADU or JADU. (Civ. Code, § 714.3, subd. (b).) Examples of effective prohibitions, unreasonable costs, and extinguishments of the ability to construct an ADU or JADU may include, but would not be limited to:
• Any delay in reviewing an ADU or JADU for compliance with reasonable restrictions beyond the timeframes required of local agencies (60 days) or that significantly delay the construction or use of an ADU or JADU.
• Requiring alteration to an ADU or JADU application that would cause the property owner to incur substantial costs or forgo the development. • Imposing a condition that would necessitate re-applying or amending a building permit application that substantially complies with State ADU and JADU Laws. • Mandating neighboring property owners’ approval or agreement for an ADU or JADU application or considering any disapproval or disagreement to the construction or use of an ADU or JADU by the neighbors as part of the local agency’s ministerial process to approve or deny the application.
• Restricting the placement or location of an ADU or JADU such that it would be rendered infeasible or unusable by the property owner.
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27 • Requiring major structural elements or design changes beyond the requirements set forth in State ADU and JADU Law that would extinguish the ability to construct or use the ADU or JADU.
• Imposing restrictions that are not objective or not knowable or available to the property owners in advance of submitting the application.
• Levying excessive application fees, conditions, or other financial requirements that would cause the property owner to incur substantial costs or forgo the development, such as requiring owner-occupancy of an ADU or charging excessive maintenance fees that would be unreasonable considering the size of the ADU proportionally to the primary dwelling.
Property owners whose construction or use of an ADU or JADU is impeded by an HOA (or their representatives or agents) are encouraged to reach out to their local agency and to seek legal counsel.
Can an HOA review or influence a local agency’s ministerial approval to create or serve an ADU or JADU?
No. An HOA may not influence a local agency’s ministerial approval of an ADU or JADU. Local agencies must provide an approval process that only includes ministerial provisions for the approval of ADU permit applications. This approval process shall not include discretionary processes, provisions, or requirements except as provided in Government Code section 66315. Thus, third party reviews by an HOA or their representatives or agents would violate State ADU Law. (Gov. Code, § 66315.) No other local ordinances, policies, or regulations may be applied in the approval or denial of an ADU or JADU permit application (Gov. Code, § 66317, subd. (c)). If a local agency allows an HOA to be involved in any part of an ADU or JADU application process, the local agency is in violation of State ADU Law.
Housing Elements and Prohousing Designation
Do ADUs and JADUs count toward a local agency’s RHNA?
Yes. Pursuant to Government Code sections 66330, and 65583.1, ADUs and JADUs may be utilized towards the RHNA and the Housing Element Annual Progress Report (APR) required by Government Code section 65400. To credit a unit toward the RHNA, HCD and the Department of Finance (DOF) utilize the U.S. Census definition of a housing unit. Generally, an ADU, and a JADU with shared sanitation facilities, and any other unit that meets the U.S.
Census definition and is reported to DOF as part of the DOF annual City and County Housing Unit Change Survey can be credited toward the RHNA based on the appropriate income level.
The housing element or APR must include a reasonable methodology to demonstrate the level of affordability. Local governments can track actual or anticipated affordability to assure ADUs and JADUs are counted towards the appropriate income category. For example, some local governments request and track information such as anticipated affordability as part of the building permit or other local applications.
For more information, please refer to the Housing Element Building Blocks or contact [email protected].
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28 What analysis is required to count ADUs toward the RHNA in the housing element? To count ADUs towards the RHNA in the housing element, local agencies must generally use a three-part approach: (1) development trends, (2) anticipated affordability, and (3) resources and incentives. Development trends must consider ADUs permitted in the prior planning period and may also consider more recent trends. Anticipated affordability can use a variety of methods to estimate the affordability by income group. Common approaches include rent surveys of ADUs, using rent surveys and square footage assumptions and data available through the APR required by Government Code section 65400. Resources and incentives include policies and programs to encourage ADUs, such as prototype plans, fee waivers, expedited procedures, and affordability monitoring programs.
Are ADUs required to be addressed in the housing element? Yes. The housing element must include a description of zoning available to permit ADUs, including development standards and analysis of potential constraints on the development of ADUs. The element must include programs to address identified constraints. In addition, housing elements must include a plan that incentivizes and promotes the creation of ADUs that can offer affordable rents for very low-, low-, or moderate-income households and requires HCD to develop a list of state grants and financial incentives in connection with the planning, construction, and operation of affordable ADUs. (Gov. Code, § 65583; HSC, § 50504.5.) Can ADUs and JADUs impact a local agency’s Prohousing Designation status? Yes. To qualify for a Prohousing Designation, a local agency must be in compliance with all applicable state housing laws, such as those mentioned in Government Codes section 65585, subdivision (j), which includes State ADU Law. An approved housing element and any associated programs which promote ADU development will also need to be enacted and in compliance to meet the minimum threshold requirements for a Prohousing Designation.
Additionally, ADUs and JADUs are specifically identified within the Prohousing Designation Program as designation criteria under California Code of Regulations, Title 25, section 6606, meaning that an ADU ordinance or program which promotes ADU development beyond the minimum requirements of State ADU Law may score additional points towards their Prohousing Designation. In other words, local agencies that are in violation of State ADU Law will be ineligible for a Prohousing Designation, while local agencies that promote additional ADU development can score additional points towards their Prohousing Designation, and all the benefits that designation provides. (CCR Title 25, §§ 6600-6608).
JADUs
What is a JADU?
A “junior accessory dwelling unit” or JADU is a unit that is no more than 500 square feet in size and contained entirely within a single-family residence. A JADU may include separate sanitation facilities or may share sanitation facilities with the existing structure. (Gov. Code, § 66333.) Are two JADUs allowed on a lot?
No. Only one JADU may be created per lot zoned for single-family residences with an existing or proposed single-family residence (Gov. Code, § 66333, subd. (a)). The JADU may be created within the walls of the proposed or existing single-family residence, including attached 255
29 garages (Gov. Code, § 66333, subd. (d)). If there are multiple detached single-family residential units on one lot, there can only be one JADU.
Can a JADU be created within a “half-plex”?
Yes, a JADU is permitted in a half-plex. A half-plex consists of two primary dwelling units on separate lots that share a dividing wall. One JADU is permitted in each half-plex in areas zoned for single-family use. (Gov. Code, § 66333, subd. (a).) If two units are attached on a single lot (i.e., a duplex), the primary dwelling is considered multifamily and would not qualify for a JADU.
Are JADUs required to have an interior connection to the primary dwelling? JADUs are required to be within the walls of the primary dwelling but are not required to have an interior connection to the primary dwelling. However, if the JADU does not include a separate bathroom, the JADU must include an interior entrance to the main living area. (Gov.
Code, § 66333, subd. (e)(2).)
Are JADUs allowed in detached accessory structures?
No, JADUs are not allowed in accessory structures. The creation of a JADU must be within the single-family residence. As noted above, “enclosed uses” within the residence, such as attached garages, are eligible for JADU creation. (Gov. Code, § 66333, subd. (d).) Are JADUs allowed to be increased by up to 150 square feet when created within an existing structure?
No. Only ADUs that are created from existing accessory structures are allowed to add up to 150 square feet “beyond the physical dimensions of the existing accessory structure” to provide for ingress or egress (Gov. Code, § 66323, subd. (a)(1)(A)).
Are there any owner-occupancy requirements for JADUs?
Yes. The owner must reside in either the remaining portion of the primary residence or in the newly created JADU. Owner-occupancy is not required when the owner is another governmental agency, land trust, or housing organization. (Gov. Code, § 66333, subd. (b).) What can local agencies require as part of an “efficiency kitchen”? An efficiency kitchen is a cooking facility with appliances, a food preparation counter, and storage cabinets that are of reasonable size in relation to the size of the JADU (Gov. Code, § 66333, subds. (f)(1), (f)(2)). A local agency cannot be more restrictive than this definition. Thus, requirements such as counter or cabinet sizes, specified electrical or gas connections, or appliance types are not authorized by State JADU Law.
Are JADUs required to provide parking?
No. Local agencies may not require parking as a condition to permitting a JADU, even when the JADU is converted from an attached garage (Gov. Code, § 66334, subd. (a)). 256
30 Local ADU Ordinances and Local Agencies
Should a local ordinance encourage the development of ADUs? Yes. Pursuant to Government Code section 66310, the California Legislature found and declared that, among other things, California is facing a severe housing crisis and ADUs are a valuable form of housing that meets the needs of family members, students, the elderly, inhome health care providers, people with disabilities, and others. Therefore, ADUs are an essential component of California’s housing supply.
Recent changes to State ADU Law intend to address barriers, streamline approval, and expand potential capacity for ADUs, recognizing their unique importance in addressing California’s housing needs. The preparation, adoption, amendment, and implementation of local ADU ordinances must be carried out consistently with Government Code section 66310 and must not unduly restrict the creation of ADUs. Local governments adopting ADU ordinances should carefully weigh the adoption of zoning, development standards, and other provisions for impacts on the development of ADUs.
State ADU Law provides the statutory minimum requirements for ADUs and JADUs. Local governments may elect to go beyond this statutory minimum to further the creation of ADUs. (Gov. Code, § 66325, subd. (b).) Many local governments have embraced the importance of ADUs as an important part of their overall housing policies and have pursued innovative strategies.
Can a local agency adopt an ADU “bonus program?”
Yes. One common strategy used by local agencies to promote ADU development is to adopt ADU bonus programs. HCD supports this approach to go above and beyond State ADU Law’s requirements to address California’s ongoing housing crisis. A successful ADU bonus program should meet the following criteria:
1. The ADU bonus program is completely optional – There is no requirement, and no consequence for not taking part in a local bonus program.
2. The ADU bonus program only offers benefits in addition to the provisions of State ADU Law, not in lieu of them – All state-mandated requirements are granted unconditionally.
3. The ADU bonus program removes one or more physical constraints, such as a limitation on the number of allowable units on a lot, ADU size, height, setback requirements, or a waiver of design and development criteria.
Does HCD have enforcement authority over ADU ordinances? Yes. Pursuant to Government Code section 66326, subdivision (a), local agencies are required to submit a copy of newly adopted ADU ordinances to HCD within 60 days of adoption. HCD may thereafter provide written findings to the local agency as to whether the ordinance complies with State ADU Law. If HCD finds that the ADU ordinance does not comply with State ADU Law, the local agency must respond to HCD’s written findings within 30 days. The local agency shall either amend its ordinance in accordance with HCD’s findings, or adopt the ordinance without changes, but include findings in its resolution explaining why the ordinance complies with State ADU Law despite HCD’s findings. (Gov. Code, § 66326, subd. (b).) 257
31 Although not required by State ADU Law, HCD may continue to offer further technical assistance to the local agency. However, if the local agency does not amend its ordinance in accordance with HCD’s findings or adopt a resolution explaining why the ordinance is compliant, HCD shall notify the local agency and may notify the Attorney General that the local agency is in violation of State ADU Law. (Gov. Code, § 66326, subd. (c)(1).) While an ordinance is non-compliant, the local agency shall apply state standards for the approval of ADUs, until the local agency adopts a compliant ordinance. (Gov. Code, § 66316.) In addition, HCD may review, adopt, amend, or repeal guidelines to implement uniform standards or criteria that supplement or clarify State ADU Law (Gov. Code, § 66327).
Do local agencies have to adopt an ADU ordinance?
No. Local agencies may choose not to adopt an ADU ordinance. Should a local government choose not to adopt an ADU ordinance, any proposed ADU development would be subject only to the standards set forth in State ADU Law. (Gov. Code, §§ 66315, 66316.) A local agency that adopts an ADU ordinance may impose objective development and design standards in compliance with Government Code section 66314.
Is a local agency required to send an ADU ordinance to HCD? Yes. A local government, upon adoption of an ADU ordinance, must submit a copy of the adopted ordinance to HCD within 60 days after adoption. After the adoption of an ordinance, HCD may review and submit written findings to the local agency as to whether the ordinance complies with the State ADU Law. (Gov. Code, § 66326, subd. (a).) Are charter cities and counties subject to the new ADU laws? Yes. State ADU Law applies to a local agency, which is defined as a city, county, or city and county, whether general law or chartered (Gov. Code, §§ 66312; 66313, subd. (g)).
Do ADU laws apply to areas governed by the Tahoe Regional Planning Agency (TRPA)? Possibly. The TRPA was formed through a bistate compact between California and Nevada, which elevates its authority above state laws. Under this authority, TRPA has adopted certain restrictions that effectively limit lot coverage on developed land. State ADU Law may conflict to a degree with the TRPA standards, and to the extent that it does, the TRPA law preempts or overrides State ADU Law. For more information, please see: https://www.trpa.gov/adus/.
Manufactured Homes
Can a manufactured home be used as an ADU?
Yes. By definition, an ADU includes manufactured homes (Gov. Code, § 66313, subd. (a)(2); HSC, §§ 18007, 18008).
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32 For more information on Manufactured Homes please contact the Division of Codes and Standards at [email protected].
Mobilehome Parks
Are ADUs permitted on lots within mobilehome parks or special occupancy parks? No. A lot, as defined in Health and Safety Code sections 18210 and 18862.23, allows for only one manufactured home, mobilehome, or recreational vehicle. Health and Safety Code section 18862.23 also allows one tent, camp car, camping cabin, or camping party on a lot within a special occupancy park.
For more information, please contact the Division of Codes and Standards at:
[email protected] for Northern CA or [email protected] for Southern CA.
Multifamily ADUs
What is considered a multifamily dwelling under State ADU Law? For the purposes of creating an ADU, a structure with two or more attached dwellings on a single lot is considered a multifamily dwelling structure. Multiple detached single-unit dwellings on the same lot are not considered multifamily dwellings for the purposes of State ADU Law.
Does a local agency have to permit ADUs on lots zoned for multifamily use? Yes. A local agency must permit an attached, detached, or converted ADU on a lot that is zoned to allow single-family or multifamily residential use and includes an existing or proposed dwelling (Gov. Code, § 66314, subds. (d)(2), (d)(3)). An applicant may build a detached or a converted ADU on a site in a residential or mixed-use zone with a proposed or existing multifamily dwelling. (Gov. Code, § 66323, subds. (a)(3), (a)(4).) (See next question for more information.)
How many ADUs are allowed on a multifamily site under Government Code section 66323?
Under Government Code section 66323, an applicant may apply to build up to eight detached Health and Safety Code section 18007, subdivision (a): “Manufactured home,” for the purposes of this part, means a structure that was constructed on or after June 15, 1976, is transportable in one or more sections, is eight body feet or more in width, or 40 body feet or more in length, in the traveling mode, or, when erected on site, is 320 or more square feet, is built on a permanent chassis and designed to be used as a single-family dwelling with or without a foundation when connected to the required utilities, and includes the plumbing, heating, air conditioning, and electrical systems contained therein. “Manufactured home” includes any structure that meets all the requirements of this paragraph except the size requirements and with respect to which the manufacturer voluntarily files a certification and complies with the standards established under the National Manufactured Housing Construction and Safety Act of 1974 (42 U.S.C., Sec. 5401, and following).
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33 ADUs (Gov. Code, § 66323, subd. (a)(4)(A)) and at least one conversion ADU within an existing multifamily dwelling and up to 25 percent of the number of units in the existing multifamily dwelling (Gov. Code, § 66323, subd. (a)(3)(B)).
Can JADUs be created in multifamily dwelling structures? No. JADUs may only be constructed on a site with a proposed or existing single-family dwelling in an area zoned for single-family residences; a JADU cannot be constructed on a multifamily site (Gov. Code, § 66333, subd. (a)).
Can a permitting agency impose accessibility standards on ADUs converted from existing space?
Maybe. For more information on ADA standards as they apply to your specific dwelling, please contact the Division of Codes and Standards at [email protected].
Can a leasing office be converted into an ADU?
Yes. A leasing office within an existing multifamily dwelling structure can be converted to at least one ADU – and up to 25 percent of the existing multifamily dwelling units – provided the ADUs comply with state building standards for dwellings. (Gov. Code, § 66323, subd. (a)(3)(A).)
In addition, a leasing office on a lot with an existing multifamily dwelling may be converted into up to eight detached ADUs, not to exceed the number of existing units on the lot and subject to height limitations in section 66321, subdivision (b), and to rear yard and side setbacks of no more than four feet. (Gov. Code, § 66323, subd. (a)(4)(A).)
Finally, an ADU can be created from an accessory space, including a leasing office, that is either attached to or located within the multifamily structure or an accessory structure, or is detached from the primary dwelling and located on the same lot as the primary dwelling, and complies with other applicable standards. (Gov. Code, § 66314, subd. (d)(3).) Nonconforming Zoning
Can a local agency refuse to permit an ADU or JADU because of nonconforming zoning conditions?
No. State ADU Law limits a local agency’s ability to deny a permit application due to the correction of existing, nonconforming zoning conditions. Nonconforming zoning conditions are physical improvements on a property that do not conform to current zoning standards. (Gov.
Code, § 66313, subd. (h)). For 66323 Units, a local agency cannot condition approval on the correction of nonconforming zoning conditions (Gov. Code, § 66323, subd. (c)). For all other ADUs, a local agency may only deny a permit to create an ADU due to zoning nonconformance when the non-conformance creates a threat to public health and safety and is affected by the construction of the ADU (Gov. Code, §§ 66322, subd. (b)). 260
34 Owner-Occupancy
Can local agencies require owner-occupancy for an ADU?
No. A local agency cannot impose an owner-occupancy requirement on any ADU (Gov. Code, § 66315).
Parking Requirements
Can ADU parking requirements exceed one space per unit or bedroom? No. Parking requirements for ADUs shall not exceed one parking space per unit or bedroom, whichever is less (Gov. Code, § 66314, subd. (d)(10)(A)). These spaces may be provided as tandem parking on a driveway (Gov. Code, § 66314, subd. (d)(10)(B)). Guest parking spaces shall not be required for ADUs under any circumstances. In addition, a local agency may not require off-street parking spaces to be replaced when a garage, carport, covered parking structure, or uncovered parking space is demolished in conjunction with the construction of an ADU or converted to an ADU (Gov. Code, § 66314, subd. (d)(11)).
Local agencies may choose to eliminate or reduce parking requirements for ADUs, such as requiring zero or a fraction of a parking space per each ADU (such as a ½ space per unit), to further reduce barriers to ADU construction and to facilitate more development of mixed-modal transportation such as walking and public transit.
Are certain ADUs exempt from parking requirements?
Yes. A local agency shall not impose parking standards on any of the following ADUs, pursuant to Government Code section 66322, subdivision (a):
1) ADUs located within one-half mile walking distance of public transit. 2) ADUs located within an architecturally and historically significant historic district. 3) ADUs that are part of the proposed or existing primary residence or an accessory structure.
4) When on-street parking permits are required but not offered to the occupant of the ADU. 5) When there is a car share vehicle located within one block of the ADU. 6) 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, provided that the ADU or the parcel satisfies any other criteria listed in Government Code section 66322, subdivision (a)(1)-(5).
Parking requirements for ADUs may not exceed one parking space per ADU or per bedroom, whichever is less (Gov. Code, § 66314, subd. (d)(10)). ADUs which have no bedrooms because they are an “efficiency unit” or studio do not increase the bedroom count.
In addition, local agencies may not impose parking requirements on 66323 Units.
Is flexibility for siting ADU parking recommended?
Yes. Local agencies should be flexible when siting parking for ADUs. Off-street parking spaces for the ADU shall be permitted in setback areas in locations determined by the local agency or through tandem parking unless specific findings are made otherwise based on specific site or 261
35 regional topographical or fire and life safety conditions. (Gov. Code, § 66314, subd. (d)(10)(B).) When a garage, carport, or covered parking structure is demolished in conjunction with the construction of an ADU, or converted to an ADU, the local agency shall not require that those off-street parking spaces for the primary unit be replaced (Gov. Code, § 66314, subd. (d)(11)).
Permit Applications and Permitting Agencies
What is an ADU permitting agency?
A permitting agency is “any entity that is involved in the review of a permit for an accessory dwelling unit or JADU and for which there is no substitute, including, but not limited to, applicable planning departments, building departments, utilities, and special districts.” (Gov.
Code, § 66313, subd. (k).) See also the Glossary section of this Handbook for this definition.
Are ADUs permitted ministerially?
Yes. ADUs subject to State ADU Law must be considered, approved or denied, and permitted ministerially, without discretionary review or a hearing (Gov. Code, § 66317, subd. (a)).
Development standards must be objective to allow for ministerial review (Gov. Code, § 66314, subd. (b)(1)). Objective standards require a uniform benchmark or reference that is knowable by both the permit applicant and the permitting agency prior to the submission of an application to create or serve an ADU (Gov. Code, § 66313, subd. (i)).
What are considered objective standards for ministerial approval? Examples include numeric and fixed standards such as heights or setbacks, or design standards such as specified colors or materials. See also the Glossary section of this Handbook for the definition of objective standards.
What would be considered subjective standards?
Subjective standards require independent judgement and are open to multiple interpretations.
Language such as “privacy,” “compatibility with neighboring properties,” “promoting design harmony and balance,” “must maintain similar architecture style,” or requiring “high quality materials” are subjective and may not be imposed on ADU development (Gov. Code, § 66313, subd. (i)).
What is the process and timeline for reviewing and approving ADU and JADU applications?
Under the Permit Streamlining Act, and whether or not a local agency has adopted an ordinance, a local agency has 30 calendar days to determine whether or not an ADU application is complete. If an application is deemed incomplete, the local agency must provide an exhaustive list of items that were not complete. That list shall be limited to those items actually required on the lead agency’s submittal requirement checklist. (Gov. Code, § 65943, subd. (a).)
If the application is complete, it must be approved or denied ministerially within 60 days from the date the permitting agency received the complete application (Gov. Code, §§ 66317, subd. (a); 66320, subd. (a)). Applicants are responsible for paying all applicable processing and 262
36 permitting fees that may be due at the time of application.
What kind of environmental review is required for ADUs and JADUs? ADUs and JADUs approved ministerially are statutorily exempt from CEQA pursuant to Section 15268 (Ministerial Projects) of the CEQA guidelines and Section 21080, subdivision (b)(1) of the Public Resources Code. In addition, ADUs can be categorically exempt from CEQA pursuant to Sections 15301 and 15303 of the CEQA guidelines, authority cited under Public Resources Code Sections 21083 and 21084. ADU and JADU ordinances are statutorily exempt from CEQA pursuant to Section 21080.17.
What does ministerial review of a permit application involve? A ministerial review ensures that the permit application meets all the applicable objective standards effective at the time of the review and uses no discretionary judgment, opinion, or subjective standards. Agency staff inspect the submitted application, site plan, and building plans for compliance with applicable standards. This often means that the permitting agency (i.e., planning, building, fire departments and utilities) reviews the application using only checklists. (Gov. Code, §§ 66316, 66317, 66320.)
Can an applicant delay the 60-day timeline?
Yes. If an applicant would like to request a delay on their application for any reason, they may do so. The 60-day period to approve or deny the permit shall be tolled for the period of the delay. (Gov. Code, § 66317, subd. (a).)
When is an ADU permit application “deemed approved” without formal review? An ADU permit application is “deemed approved” when the permitting agency fails to approve or deny a completed application within 60 days of receiving a completed application (Gov.
Code, §§ 66317, subd. (a); 66320, subd. (a)).
Do ADUs need a Certificate of Occupancy?
Yes, property owners must obtain a Certificate of Occupancy from the local agency prior to any residential occupancy of an ADU or JADU (Gov. Code, § 66328; 2022 CBC, § 111).
Can the local agency deny a permit application for an unpermitted ADU that was built before 2020?
A local agency shall not deny a permit for an unpermitted ADU that was constructed before January 1, 2020, due to the ADU being in violation of building standards, non-compliance with State ADU Law, or any local ordinance regulating ADUs (Gov. Code, § 66332, subd. (a)).
However, the local agency may deny the permit if the local agency makes a finding that correcting the violation is necessary to protect the health and safety of the public or occupants of the structure, or if the building is deemed substandard pursuant to section 17920.3 of the Health and Safety Code (Gov. Code, § 66332, subds. (b), (c)).
What happens when an application for an ADU is denied?
The permitting agency denying the application must provide the applicant a full set of comments listing items that are defective or deficient and include a description of how the application may be remedied. A full set of comments includes all comments from all reviewers, 263
37 from every permitting agency. The 60-day countdown continues until the complete list is provided. (Gov. Code, §§ 66317, 66320.) A local agency which has provided a complete set of correction comments has fulfilled this requirement. Following a denial, a subsequent application resets the 60-day period.
The applicant may address the proposed remedy and resubmit the application to the permitting agency. A local agency may charge a fee to process a resubmitted application. (Gov. Code, § 66335 subd. (c).)
How can I request technical assistance from HCD about the denial of my ADU application?
Questions and requests for technical assistance should be submitted through HCD’s ADU Portal, which is available on HCD’s ADU webpage: https://www.hcd.ca.gov/policy-andresearch/accessory-dwelling-units. To reach the portal, navigate to “Contact the ADU Team.” Applicants should first work to address the denial with the permitting agency via the agency’s process. HCD may provide technical assistance after an application has been submitted.
However, HCD may not respond or follow up with a permitting agency if there is no pending application.
Rental Terms
Are rental terms allowed?
Yes. Local agencies may require that ADUs be used for rentals of terms longer than 30 days (Gov. Code, § 66315). ADUs created pursuant to Government Code section 66323 must be rented for terms longer than 30 days (Gov. Code, § 66323, subd. (e)).
Sales and Separate Conveyance
Can ADUs be sold or separately conveyed?
A local agency may adopt a local ordinance to allow separate conveyance of the primary unit and the ADU as condominiums if the ordinance meets specific requirements laid out in Government Code section 66342. In addition, Government Code section 66341 creates a narrow exception to allow separate conveyance of an ADU to a qualified buyer if the property was built or developed by a qualified nonprofit corporation and meets other requirements specified in section 66341.
Senate Bill 9 (SB 9) (Chapter 162, Statutes of 2021)
How does SB 9 work with ADUs?
SB 9 (Gov. Codes, §§ 65852.21, 66411.7) and State ADU Law are complementary. Both laws can be implemented in ways that result in developments with both “SB 9 Units” and ADUs.
However, in no case does SB 9 require a local agency to allow more than four units on a single lot, in any combination of primary units and ADUs or JADUs. For example, when a lot split has not occurred, the lot is eligible to receive a second primary unit on the lot under SB 9 and to receive up to two ADUs under State ADU Law. When a lot split occurs under SB 9, each lot is 264
38 eligible for up to two units, including, for example, a primary unit and an ADU or JADU. In the case that a lot owner both splits a lot and builds two primary units on each resulting lot under SB 9, State ADU Law is superseded (i.e., neither lot is entitled to an ADU or JADU); in all other cases, State ADU Law applies, up to SB 9’s four-unit cap. (Gov. Code, § 66411.7, subd. (j).)
Members of the public with SB 9 complaints are encouraged to share them to the Housing Accountability Unit Portal. Please also see HCD’s SB 9 Fact Sheet.
Setbacks
Can setbacks be required for ADUs?
Yes. A local agency may impose objective development standards, such as setbacks, for the creation of ADUs. A setback of no more than four feet from the side and rear lot lines shall be required for an attached or detached ADU (Gov. Code, § 66314, subd. (d)(7)). Additional setback requirements may be required in the Coastal Zone if required by a local Coastal Program (Gov. Code, § 66329).
Are setbacks required for ADUs/JADUs created within an existing structure or replacing an existing structure?
No setback shall be required for an ADU or JADU created within an existing living area or accessory structure or an ADU created in a new structure in the same location and to the same dimensions as an existing structure (Gov. Code, § 66314, subd. (d)(7)).
Can a local agency impose front setbacks?
Yes. A local agency may apply front yard setbacks for ADUs, but front yard setbacks cannot preclude an ADU of at least 800 square feet from being built on the property, even if that ADU would exist partially or wholly within the front setback (Gov. Code, § 66321, subd. (b)(3)).
Can a local agency require an ADU be built in an alternate location to comply with front setback requirements?
Maybe. Local agencies may set objective standards, including front setbacks. However, a permitting agency may not require that an ADU of up to 800 square feet be built in an alternative location based on discretionary, or non-objective, standards. Requiring an alternative site, using objective standards, to comply with front setback requirements must not be overly burdensome such that it unreasonably restricts the ability of homeowners to create ADUs in zones in which they are authorized by local ordinance. (Gov. Code, §§ 66321, subd. (b)(3); 66311.)
Is there a distance requirement between an ADU and other structures on the lot? State ADU Law does not address the distance between an ADU and other structures on a lot.
A local agency may impose objective development standards for the creation of some ADUs, and all ADUs must comply with local building codes. However, development standards should not unreasonably restrict the creation of ADUs. (Gov. Code, § 66311.) Minimum distance or other requirements may not be applied if they would unreasonably restrict the creation of ADUs, unless they are a requirement of a Building or Fire Code (Gov. Code, § 66314, subd. (d)(8)).
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39 Size Requirements and Restrictions
How is the square footage of an ADU or JADU calculated? The CBC provides the minimum standards to which all buildings in California must be built (California Building Code, Vol. 2, 1.1.3). The CBC also allows local agencies to adopt amendments, additions, or deletions to the provisions of the CBC which are reasonably necessary and are more restrictive than the CBC’s standards (California Building Code, Vol. 2,
1.1.8).
The CBC defines “Floor Area, Gross” as “[t]he floor 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. The floor area of a building, or portion thereof, not provided with surrounding exterior walls shall be the usable area under the horizontal projection of the roof or floor above.
The gross floor area shall not include shafts with no openings or interior courts.” Government Code section 66314, subdivision (d)(8) states that a local ADU ordinance must require ADUs to comply with local building codes. Thus, when a local agency has not adopted specific changes to the CBC in its local building standards, then the CBC standards, and in this case the definition of floor area, shall apply. If the local agency has made specific amendments, additions, or deletions relating to the definition of “Floor Area” within its local building standards, then those altered definitions shall apply.
Can minimum lot size requirements be imposed on ADUs?
No. Local governments may not include minimum lot size requirements for ADUs (Gov. Code, § 66314, subd. (b)(1)).
Can lot coverage or floor area ratio preclude an ADU?
Limits on lot coverage or any floor area ratio requirements cannot preclude the creation of an ADU of at least 800 square feet that maintains four-foot rear and side setbacks. While floor area ratio and lot coverage requirements can be applied to other ADUs, such requirements must not unreasonably restrict the creation of ADUs. (Gov. Code, §§ 66321, subd. (b)(3); 66311.)
Can minimum and maximum unit sizes be established for ADUs? Yes. A local government may, by ordinance, establish minimum and maximum unit size requirements for both attached and detached ADUs; however, maximum unit size requirements must allow an ADU of at least 850 square feet, or 1,000 square feet for ADUs with more than one bedroom. (Gov. Code, § 66321, subd. (b)(2).) For local agencies without a compliant ADU ordinance, maximum unit sizes are 1,200 square feet for a new detached ADU (Gov. Code, § 66314, subd. (d)(4)) and up to 50 percent of the floor area of the existing primary dwelling for an attached ADU (at least 800 square feet) (Gov. Code, §§ 66314, subd. (d)(5); 66321, subd. (a)(3)). Finally, the local agency must not establish by ordinance a minimum square footage requirement that prohibits the development of an efficiency unit as defined in Health and Safety Code section 17958.1. An efficiency unit may be as small as 150 square feet in floor area (HSC, § 17958.1).
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40 The conversion of an existing accessory structure or a portion of the existing primary residence to an ADU is not subject to unit size requirements. (Gov. Code, § 66323, subd. (a)(1).) Can open space or landscaping requirements be used to limit the size of or deny an ADU permit?
No. A local agency's open space zoning requirements may not deny an ADU of at least 800 square feet with four-foot rear and side setbacks (Gov. Code, § 66321, subd. (b)(3)). In addition, 66323 Units are not subject to local open space and landscaping requirements in an ADU ordinance (Gov. Code, § 66323, subd. (b)).
Can a percentage of the primary dwelling be used to limit the maximum size of an attached ADU?
Yes. Local agencies may utilize a percentage (e.g., not greater than 50 percent) of the existing primary dwelling as a maximum unit size for attached ADUs, but only if it does not restrict an ADU’s size to less than 850 square feet, or 1,000 square feet for ADUs with more than one bedroom (Gov. Code, §§ 66314, subd. (d)(4); 66321 (b)(2)).
Can maximum unit sizes exceed 1,200 square feet for ADUs? Yes. Maximum unit sizes can exceed 1,200 square feet for ADUs through the adoption of a less stringent local ADU ordinance. State ADU Law does not limit the authority of local agencies to adopt less restrictive requirements for the creation of ADUs. (Gov. Code, § 66325, subd. (b).)
Solar Requirements
Are solar systems required for newly constructed ADUs?
Yes, newly constructed ADUs are subject to the California Energy Code requirement (excluding manufactured homes) to provide solar systems if the unit(s) is a newly constructed, detached ADU (though some exceptions apply). Per the California Energy Commission (CEC), the solar systems can be installed on the ADU or on the primary dwelling unit. ADUs that are constructed within existing space, or as an addition to existing homes, including detached additions where an existing detached building is converted from non-residential to residential space, are not subject to the California Energy Code requirement to provide solar systems.
Please refer to the CEC on this matter. For more information, see the CEC’s website at www.energy.ca.gov. You may email your questions to [email protected], or contact the Energy Standards Hotline at 800-772-3300. CEC memos can also be found on HCD’s website at https://www.hcd.ca.gov/policy-and-research/accessory-dwelling-units.
Tiny Homes
Are “tiny homes” considered ADUs?
Possibly. While State ADU Law does not specifically reference “tiny homes,” “tiny home” is an industry term that can mean different structures or vehicles. If the unit meets the definition of an ADU in Government Code section 66313, subdivision (a), it is subject to ADU Law. For 267
41 more information on “tiny homes,” see Information Bulletin 2016-01 at https://www.hcd.ca.gov/policy-research/docs/hcd-bulletin-tiny-home-ib-2016-01.pdf. You may also contact HCD’s Division of Codes and Standards at [email protected].
Types of ADUs
What are attached ADUs?
An attached ADU is a newly created (constructed) dwelling structure that structurally abuts (and connects to) an existing or proposed primary dwelling or accessory structure (Gov. Code, § 66314, subd. (d)(3)). This can be constructed on top of or below the primary dwelling. The attached ADU extends beyond the building plane of the existing or proposed primary dwelling unit. An attached ADU shall not exceed 50 percent of the existing primary dwelling’s floor area size. (Gov. Code, § 66314, subd. (d)(4).)
Examples of attached ADUs include, but are not limited to:
• An ADU addition to a duplex.
• An ADU built on top of an attached garage.
• An ADU built as a new second story of a single-family dwelling. • An ADU built in a newly constructed basement.
What are converted ADUs?
Converted ADUs are dwelling units that are created from existing space within proposed or existing primary dwelling units or existing accessory structures. For single family residences, the converted ADU is created from the proposed or existing space of the single-family residence or the existing space of an accessory structure. For multifamily dwelling structures, the converted ADUs are created from portions of the multifamily dwelling structures that are not used as livable space (i.e., storage rooms, passageways, etc.). (Gov. Code, § 66323, subds. (a)(1), (a)(3)(A).)
What standards apply to ADU conversions?
Objective standards related to height, lot coverage, landscape, design, development, and architectural standards in the local ADU ordinance do not apply to ADU conversions. However, since ADU conversions are created within an existing structure, the height of ADU conversions are limited to the dimension of the original structure. ADU conversions are not subject to setback requirements because they are created within an existing living area or are constructed in the same location and to the same dimensions as an existing structure. (Gov.
Code, § 66323, subds. (a)(1), (a)(3)(A).) ADU conversions are subject to all applicable building, health and safety, and fire standards for dwellings.
Can accessory structures be converted into an ADU?
Yes. The conversion of detached garages, sheds, and other existing detached accessory structures into ADUs is permitted by State ADU Law (Gov. Code, §§ 66314, subd. (d)(3); 66323, subds. (a)(1), (a)(3)(A)).
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42 What are Detached ADUs?
Detached ADUs are newly constructed dwelling units that are created on a lot with an existing or proposed single-family or multifamily dwelling structure but are detached from the primary dwelling (Gov. Code, §§ 66314, subd. (d)(3); 66323, subds. (a)(1), (a)(2), (a)(4)(A)).
Can detached ADUs on multifamily lots be attached to each other? Yes. Multifamily lots qualify for two detached, new construction ADUs on lots with a proposed multifamily dwelling, or up to eight detached ADUs on a lot with an existing multifamily dwelling, not to exceed the total number of existing units on the lot. These ADUs are detached from the primary multifamily structure but do not have to be detached from each other or other accessory structures on the lot. (Gov. Code, § 66323, subd. (a)(4)(A).) For more information on 66323 Units, please see the “66323 Units” section above.
Unpermitted Structures and ADUs
Can a local agency deny a permit for an unpermitted ADU or JADU built prior to January 1, 2020?
Local agencies may not deny a permit for an unpermitted ADU or JADU created prior to January 1, 2020. An inspector from the local agency may inspect the unit for compliance with health and safety standards and provide recommendations to comply with health and safety standards necessary to obtain a permit. If the inspector finds noncompliance with health and safety standards, the local agency shall not penalize an applicant for having the unpermitted ADU or JADU and shall approve necessary permits to correct noncompliance with health and safety standards (Gov. Code, § 66332, subd. (f)). However, the local agency may deny a permit if it finds that the building is substandard. This does not preclude the local agency from pursuing enforcement action on these violations, and an applicant may be required to make alterations or repairs accordingly. (Gov. Code, § 66332.) How does an applicant know what items are related to health and safety and may lead to needing corrections for an unpermitted ADU or JADU?
A local agency shall inform the public about the provisions of this section through public information resources, including permit checklists and the local agency’s internet website, which shall include both of the following: (1) a checklist of the conditions specified in Section 17920.3 of the Health and Safety Code that would deem a building substandard, and (2) information that, before applying for a permit, the homeowner may obtain a confidential third-party code inspection from a licensed contractor to determine the unit’s existing condition or potential scope of building improvements (Gov. Code, § 66332, subd. (d)(1), (d)(2)).3 Can a local agency charge impact, connection, or capacity fees for an unpermitted ADU or JADU built prior to January 1, 2020?
No. A homeowner applying for a permit for a previously unpermitted ADU or JADU constructed 3 See the Department of Consumer Affairs’ Contractors State License Board’s contractor license check resource, available at
https://www2.cslb.ca.gov/onlineservices/checklicenseII/checklicense.aspx. 269
43 before January 1, 2020, shall not be required to pay impact fees or connection or capacity charges to obtain a permit if they provide written evidence that their household income does not exceed the definition of a low- or moderate-income household, as defined in Section 50093 of the Health and Safety Code (Gov. Code, § 66332, subd. (e)).
Utilities
Can a local agency, special district, or water corporation require a new or separate connection for an ADU?
ADUs and JADUs created from the existing space of a primary dwelling or accessory structure pursuant to Government Code section 66323, subdivision (a)(1), cannot be required to install a new or separate connection unless the ADU is constructed concurrently with a new singlefamily dwelling. For all other ADUs not created pursuant to Government Code section 66323, subdivision (a)(1), a new or separate connection directly from the utility to the ADU may be required (Gov. Code, § 66324, subds. (d), (e)).
What if I have questions about electrical or gas utilities in connection with an ADU? HCD does not have authority over issues related to gas and electrical services. If an applicant believes that a local utility provider is not complying with connection requirements, fee schedules, or other issues that impact the creation of or service of an ADU, the applicant can file a complaint with the appropriate agency.
For privately owned public utilities such as PG&E, contact the California Public Utilities Commission (CPUC) by using CPUC’s online complaint form, by calling 1-800-649-7570, or by sending a letter to:
California Public Utilities Commission
505 Van Ness Avenue
San Francisco, CA 94102–3298
For publicly owned utilities such as SMUD, the applicant will need to contact the utility directly and follow their complaint process.
Zoning, Development, and Other Standards
Are ADUs allowed jurisdiction-wide?
No. Local agencies may, by ordinance, designate where ADUs are permitted within zones that allow residential use. However, any limits on where ADUs are allowed may only be based on the adequacy of water and sewer service and on the impacts on traffic flow and public safety. (Gov. Code, § 66314, subd. (a).)
Local governments may not preclude the creation of ADUs altogether, and any limitation should be accompanied by detailed findings of fact explaining why ADU limitations are required and consistent with these factors. If a lot with a residence has been rezoned to a use that does not allow for residential uses, that lot is no longer eligible for an ADU. (Gov. Code, §§ 270
44 66314; 66323, subd. (a).) Impacts on traffic flow should consider factors like lower car ownership rates for ADUs. Finally, local governments may develop alternative procedures, standards, or special conditions with mitigations for allowing ADUs in areas with potential health and safety concerns.
Can local agencies restrict ADUs based on Fire Hazard Severity Zones or other environmental hazards?
HCD understands that extreme weather conditions occur, and the threat of destructive wildfires cannot be ignored. Some agencies have used the High (HFHSZ) and Very High Fire Hazard Severity Zone (VHFHSZ) maps provided by CAL FIRE to mark areas where ADUs may be restricted or prohibited altogether. However, according to CAL FIRE, the HFHSZ and VHFHSZ maps are intended to govern building materials used in construction and defining zones of defensibility around structures. These are not intended to restrict housing development. The presence of a High Fire Hazard Severity Zone is not a conclusive rationale to warrant restricting ADUs. A restriction based on the threat to public safety should be supported with findings detailing the impact of ADUs on public safety. (Gov. Code, § 66314, subd. (a).) Can an ADU application be denied due to lot density?
No. An ADU ordinance shall provide that ADUs do not exceed the allowable density on the lot (Gov. Code, § 66314, subd. (c)). Additionally, ADUs which conform to Government Code section 66314 shall not be considered to exceed the allowable density for the lot (Gov. Code, §§ 66314, subd. (c); 66319).
Can ADUs serve to qualify a project for a density bonus pursuant to State Density Bonus Law (SDBL), even though the general plan designation on the site allows less than five primary units?
Yes. A project initially qualifies under the SDBL when the project’s “total units,” as defined in the SDBL (i.e., the number of units in the project before a density bonus is received) meet or exceed five units (Gov. Code, § 65915, subd. (o)(8)). Although the SDBL makes no mention of ADUs in its text, it likewise does not expressly narrow the definition of unit to exclude ADUs.
Provided they are counted within the total units of the project, ADUs are a type of housing unit that may be counted for the purposes of achieving the five total unit minimum.
If ADUs can be used to qualify a project under the SDBL’s minimum total unit requirement, can they likewise be used to calculate a density bonus? No. The calculation of a density bonus is based solely on a site’s maximum allowable residential density, which does not include ADUs. A density bonus is defined as “a density increases over the otherwise maximum allowable gross residential density…” (Gov. Code, § 65915, subd. (f)). Maximum allowable residential density is defined as “the greatest number of units allowed under the zoning ordinance, specific plan, or land use element of the general plan.” (Gov. Code, § 65915, subd. (o)(6).) As an example, if the zoning ordinance allows up to two units and the general plan allows up to three, the applicable maximum allowable residential density (i.e., base density) on the site is three units, even though the addition of two ADUs brings the total units to five (see question above). The density bonus would then be calculated on top of a base density of three units, not five. 271
45 Can a local government apply design and development standards? Yes. With an adopted ADU ordinance in compliance with State ADU Law, a local government may apply objective development and design standards that include, but are not limited to, parking, height, setback, landscape, architectural review, maximum size of a unit, and standards that prevent adverse impacts on any real property that is listed in the California Register of Historical Resources. These standards must be objective to allow ministerial review of an ADU. (Gov. Code, §§ 66314, subd. (b)(1); 66316.) ADUs created under Government Code section 66323 shall not be subject to design and development standards except for those that are specified in section 66323. (Gov. Code, § 66323, subds. (a), (b)).
Can an ADU be built in a historic district or if the primary residence is subject to historic preservation?
Yes. ADUs are allowed within a historic district and on lots where the primary residence is subject to historic preservation. State ADU Law allows for a local agency to impose standards that prevent adverse impacts on any real property that is listed in the California Register of Historical Resources. (Gov. Code, § 66314, subd. (b)(1).) As with non-historic resources, an agency may impose objective standards that do not unreasonably restrict the creation of ADUs (Gov. Code, § 66311). Local agencies are encouraged to incorporate these standards into their ordinances and to submit these standards along with their ordinances to HCD.
How should demolition of garages in conjunction with the permitting of an ADU be handled by a local or permitting agency?
The local or permitting agency must review and issue the demolition permit and ADU application at the same time. The applicant shall not be required to provide written notice or post a placard for the demolition of the garage unless the property is located in an architecturally and historically significant historic district. (Gov. Code, § 66314, subds. (e), (f).) 272
46 Resources
Changes to State ADU Laws
AB 2533
AB 2533 (Chapter 834, Statutes of 2024) made various changes to State ADU Law (Gov.
Code, § 66332) regarding unpermitted ADUs and goes into effect on January 1, 2025. This bill:
• Prohibits a local agency from denying a permit for an unpermitted ADU or JADU that was constructed before January 1, 2020, for those violations, unless the local agency makes a finding that correcting the violation is necessary to comply with conditions that would otherwise deem a building substandard.
• Requires a local agency to inform the public about the provisions prohibiting denial of a permit for an unpermitted ADU or JADU.
• Requires this information to include a checklist of the conditions that deem a building substandard and to inform homeowners that, before submitting a permit application, the homeowner may obtain a confidential third-party code inspection from a licensed contractor.
• Prohibits a local agency from requiring a homeowner to pay impact fees or connection or capacity charges except under specified circumstances. • Authorizes an inspector from a local agency, upon receiving an application for a permit for a previously unpermitted ADU or JADU constructed before January 1, 2020, to inspect the unit for compliance with health and safety standards and provide recommendations to comply with health and safety standards. 273
47 • Prohibits the local agency from penalizing an applicant for having the unpermitted ADU and would require the local agency to approve necessary permits to correct noncompliance with health and safety standards.
SB 1211
SB 1211 (Chapter 296, Statutes of 2024) made various changes to State ADU Law (Gov.
Code, §§ 66313, 66314, 66323) with regard to replacement parking and 66323 Units on lots with existing or proposed multifamily dwellings and goes into effect on January 1, 2025. This bill:
• Defines “livable space” as a space in a dwelling intended for human habitation, as the term appears in Government Code sections 66313, subdivision (e), and 66323, subdivision (a)(3)(A).
• Specifies that uncovered, off-street parking spaces demolished in conjunction with the construction of an ADU do not need to be replaced.
• Authorizes up to eight detached ADUs on a lot with an existing multifamily dwelling, provided that the number of ADUs does not exceed the number of existing units on the lot.
• Prohibits a local agency from imposing any objective development standards on 66323 Units that are not authorized by the provisions of Government Code section 66323, subdivision (a).
SB 477
SB 477 (Chapter 7, Statutes of 2024) made changes to the numbering of the sections of Government Code for State ADU and JADU Laws. The bill went into effect on March 25, 2024.
New Government Code Sections Previous Government Code Sections Article 1. General Provisions
66310 65852.150 (a)
66311 65852.150 (b)
66312 65852.150 (c)
66313 General Definition Section
65852.2 (j)
65852.22 (j)
Article 2. Accessory Dwelling Unit Approvals
66314 65852.2 (a)(1)(A),
(D)(i)-(xii),
(a)(4)-(5)
66315 65852.2 (a)(8)
66316 65852.2 (a)(6)
66317 65852.2 (a)(3),
(a)(7)
66318 65852.2 (a)(9)
65852.2 (a)(2)
274
48 New Government Code Sections Previous Government Code Sections 66319 65852.2 (a)(10)
66320 65852.2 (b)
66321 65852.2 (c)
66322 65852.2 (d)
66323 65852.2 (e)
66324 65852.2 (f)
66325 65852.2 (g)
66326 65852.2 (h)
66327 65852.2 (i)
66328 65852.2 (k)
66329 65852.2 (l)
66330 65852.2 (m)
66331 65852.2 (n)
66332 65852.23.
Article 3. Junior Accessory Dwelling Units
66333 65852.22 (a)
66334 65852.22 (b)
66335 65852.22 (c)
66336 65852.22 (d)
66337 65852.22 (e)
66338 65852.22 (f)-(g)
66339 65852.22 (h)
Article 4. Accessory Dwelling Unit Sales
66340 65852.26 (b)
66341 65852.26 (a)
66342 65852.2 (a)(10)
Note: The statutory references below have been adjusted to the new numbering described above.
AB 976 and AB 1033
AB 976 (Chapter 751, Statutes of 2023) and AB 1033 (Chapter 1033, Statutes of 2023) made changes to State ADU Law (Gov. Code, §§ 66310-66342) regarding the occupancy, sale, and separate conveyance of ADUs and went into effect on January 1, 2024. These bills:
• Removed the existing 2025 sunset prohibition on a local agency imposing an owneroccupancy requirement on any ADU and would instead prohibit a local agency from requiring owner-occupancy for an ADU (Gov. Code, § 66315). • Authorized a local agency to adopt a local ordinance to allow the separate conveyance of the primary dwelling unit and ADU(s) as condominiums, subject to certain conditions (Gov. Code, §§ 66340-66342). Specifically:
o Condominiums shall be created pursuant to the Davis-Stirling Common Interest Development Act.
o Condominiums shall be created in conformance with the Subdivision Map Act. 275
49 o Requires a safety inspection of the ADU prior to recordation of the condominium plan.
o Requires lienholders’ consent prior to recordation of the subdivision map or condominium plan.
o The local agency shall provide notice to consumers regarding requirements, establishment of condominium, and lienholder consent.
o Requires homeowner notice to utilities.
o The owner of a separate interest in an existing planned development must obtain express written authorization from the association.
AB 1332
AB 1332 (Chapter 759, Statutes of 2023) added section 65852.27 to the Government Code to expedite the approval of ADUs and went into effect on January 1, 2024. This bill:
• Requires the local agency to develop a program for the preapproval of ADU plans by January 1, 2025. • Requires the local agency to accept ADU plan submissions for preapproval from any party and approve or deny applications pursuant to standards established in Government Code sections 66314-66342.
• Requires the local agency to post preapproved ADU plans and the contact information of the applicant on the local agency’s internet website. • Allows the local agency to also post plans pre-approved by other local or state agencies.
• Authorizes a local agency to charge a fee to an applicant for the preapproval of an ADU plan.
• Requires a local agency to approve or deny within 30 days an application for a detached ADU that utilizes either a plan preapproved by the local agency or another agency within the state, or a plan that is identical to a plan in a previously approved application for a detached ADU. The plans must be valid within the current triennial California Building Standards Code rulemaking cycle.
AB 434
AB 434 (Chapter 740, Statutes of 2023) modified amended Government Code section 65585, subdivision (j), by adding State ADU Law (Gov. Code, §§ 66310-66342) and SB 9 (Gov. Code, §§ 65852.21, 66411.7), among others, to the list of laws that HCD is authorized to enforce, including HCD’s authority to notify a city, county, city and county, or the Attorney General when the planning agency of a city, county, or city and county fails to comply with those laws. The bill went into effect on January 1, 2024.
AB 345
AB 345 (Chapter 343, Statutes of 2021) built upon recent changes to State ADU Law, to require cities to allow the separate conveyance of ADUs from the primary dwelling in certain 276
50 circumstances, provided they meet certain conditions, including those listed below, found in Government Code section 66341:
• The ADU or primary dwelling was built or developed by a qualified nonprofit (Gov.
Code, § 66341, subd. (a)).
• There is an enforceable restriction on the use of the property between the low-income buyer and nonprofit that satisfies the requirements of Section 402.1 of the Revenue and Taxation Code (Gov. Code, § 66341, subd. (b)).
• The entire property is subject to the affordability restrictions to assure that the ADU and primary dwelling are preserved for owner-occupied, low-income housing for 45 years and are sold or resold only to a qualified buyer (Gov. Code, § 66341, subd. (c)). • The property is held in a recorded tenancy in common agreement that meets certain requirements (Gov. Code, § 66341, subd. (c)).
AB 345 does not apply to JADUs, and local ordinances must continue to prohibit JADUs from being sold separately from the primary residence.
AB 3182
AB 3182 (Chapter 198, Statutes of 2020) built upon recent changes to ADU Law, specifically Government Code sections 66310-66342 and Civil Code Sections 4740 and 4741, to further address barriers to the development and use of ADUs and JADUs.
This legislation, among other changes, addressed the following:
• States that an application for the creation of an ADU or JADU shall be deemed approved (not just subject to ministerial approval) if the local agency has not approved or denied the completed application within 60 days (Gov. Code, § 66317, subd. (a)). • Requires ministerial approval of an application for a building permit within a residential or mixed-use zone to create one ADU and one JADU per lot (not one or the other), within the proposed or existing single-family dwelling, if certain conditions are met (Gov.
Code, § 66323, subd. (a)(1)(A)).
• Provides for the rental or leasing of a separate interest ADU or JADU in a common interest development, notwithstanding governing documents that otherwise appear to prohibit renting or leasing of a unit, and without regard to the date of the governing documents (Civ. Code, §§ 4740, subd. (a); 4741, subd. (a)). • Provides that not less than 25 percent of the separate interest units within a common interest development be allowed as rental or leasable units (Civ. Code, § 4741, subd. (b)).
AB 68, AB 881, and SB 13
AB 68 (Chapter 655, Statutes of 2019), AB 881 (Chapter 659, Statutes of 2019), and SB 13 (Chapter 653, Statutes of 2019) built upon recent changes to State ADU and JADU Law and further address barriers to the development of ADUs and JADUs. 277
51 This legislation, among other changes, addresses the following:
• Prohibits local agencies from including in development standards for ADUs requirements on minimum lot size. (Gov. Code, § 66314, subd. (b)(1)). • Clarifies that areas designated by local agencies for ADUs may be based on the adequacy of water and sewer services, as well as on impacts on traffic flow and public safety (Gov. Code, § 66314, subd. (a)).
• Eliminates all owner-occupancy requirements by local agencies for ADUs approved between January 1, 2020, and January 1, 2025 (Gov. Code, § 66315). • Prohibits a local agency from establishing a maximum size of an ADU of less than 850 square feet, or 1,000 square feet if the ADU contains more than one bedroom and requires approval of a permit to build an ADU of up to 800 square feet (Gov. Code, § 66321, subds. (b)(2), (b)(3)).
• Clarifies that when ADUs are created through the conversion of a garage, carport or covered parking structure, replacement of off-street parking spaces cannot be required by the local agency (Gov. Code, § 66314, subd. (d)(11)). • Reduces the maximum ADU and JADU application review time from 120 days to 60 days (Gov. Code, §§ 66317, subd. (a); 66335, subd. (2)). • Clarifies that “public transit” includes various means of transportation that charge set fees, run on fixed routes, and are available to the public (Gov. Code, § 66313, subd. (m)).
• Establishes impact fee exemptions and limitations based on the size of the ADU. ADUs up to 750 square feet are exempt from impact fees, and ADUs that are 750 square feet or larger may be charged impact fees but only such fees that are proportional in size (by square foot) to those for the primary dwelling unit (Gov. Code, § 66324, subd. (c)(1)). • Defines an “accessory structure” to mean a structure that is accessory and incidental to a dwelling on the same lot (Gov. Code, § 66313, subd. (b)). • Authorizes HCD to notify the local agency if HCD finds that the local ADU ordinance is not in compliance with state law (Gov. Code, § 66326, subd. (b)(1)). • Clarifies that a local agency may identify an ADU or JADU as an adequate site to satisfy its Regional Housing Needs Allocation (RHNA) (Gov. Code, § 65583.1, subd. (a)). • Permits JADUs even where a local agency has not adopted an ordinance expressly authorizing them (Gov. Code, § 66320).
• Allows a permitted JADU to be constructed within the walls of the proposed or existing single-family residence and eliminates the required inclusion of an existing bedroom and an interior entry into the single-family residence (Gov. Code, § 66333, subd. (d)). • Requires, upon application and approval, a local agency to delay enforcement against a qualifying substandard ADU for five years to allow the owner to correct the violation, so long as the violation is not a health and safety issue, as determined by the enforcement agency (Gov. Code, § 66331; HSC, § 17980.12).
AB 587, AB 670, and AB 671
In addition to the legislation listed above, AB 587 (Chapter 657, Statutes of 2019), AB 670 (Chapter 178, Statutes of 2019), and AB 671 (Chapter 658, Statutes of 2019) also have an 278
52 impact on State ADU Law, particularly through Health and Safety Code section 17980.12.
These pieces of legislation, among other changes, address the following:
• AB 587 creates a narrow exemption to the prohibition for ADUs to be sold or otherwise conveyed separately from the primary dwelling by allowing deed-restricted sales to occur if the local agency adopts an ordinance. To qualify, the primary dwelling and the ADU are to be built by a qualified nonprofit corporation whose mission is to provide units to low-income households. (Gov. Code, § 66340, 66341.)
• AB 670 provides that covenants, conditions, and restrictions that either effectively prohibit or unreasonably restrict the construction or use of an ADU or JADU on a lot zoned for single-family residential use are void and unenforceable (Civ. Code, § 4751)). • AB 671 requires local agencies’ housing elements to include a plan that incentivizes and promotes the creation of ADUs that can offer affordable rents for very low-, low-, or moderate-income households and requires HCD to develop a list of state grants and financial incentives in connection with the planning, construction, and operation of affordable ADUs (Gov. Code, § 65583; HSC, § 50504.5)).
279
53 Summary Table of Statutory Changes
Bill Statute Amended Section Year Effective
AB 670 (2019) Civil Code 4751 2020
AB 671 (2019) Government Code 65583 (c)(7) 2020
AB 671 (2019) Health and Safety Code 50504.5 2020
AB 3182 (2020) Civil Code 4740
4741 2021
AB 345 (2021) Government Code 65852.26 2022
SB 9 (2021) Government Code 65852.21
66411.7 2022
AB 1584 (2022) California Civil Code 714.3 2022
SB1069 (2016)
AB 2299 (2016)
SB 229 (2017)
AB 494 (2017)
AB 881 (2019)
AB 68 (2019)
SB 13 (2019)
AB 3182 (2020)
AB 345 (2021)
AB 2221 (2022)
SB 897 (2022)
AB 976 (2023)
AB 1033 (2023)
Government Code 65852.2 2023
AB 2406 (2016)
AB 881 (2019)
SB 897 (2022)
Government Code 65852.22 2023
SB 897 (2022) Health and Safety Code 17980.12 2023
AB 1332 (2023) Government Code 65852.27 2024
AB 434 (2023) Government Code 65585 (j) 2024
SB 477 (2024) Government Code
65852.150
65852.2
65852.22
65852.23
65852.26
2024
AB 2533 (2024) Government Code 66322 2025
280
54 SB 1211 (2024) Government Code
66313
66314
66323
2025
AB 3057 (2024) Public Resources Code 21080.17 2025
SB 1077 (2024) Public Resources Code 30500.5 2026
281
Attachment 4
2023 and 2024 State ADU Legislation
• AB 1033 (2023): This law allows homeowners to convert ADUs into condominiums, enabling the separate sale of ADUs from the primary residence. • AB 976 (2023): This legislation permanently prohibits local governments from imposing owner-occupancy requirements on ADUs, allowing homeowners to rent out ADUs without residing on the property.
• AB 434 (2023): This bill empowers HCD to enforce streamlined processing of ADU applications, ensuring compliance with State laws and expediting approvals • SB 1211 (2024): This law allows the construction of up to eight detached ADUs on properties with existing multifamily dwellings, provided the number of ADUs does not exceed the number of existing units. It also eliminates the requirement to replace parking spaces when they are demolished or converted to build an ADU. • AB 2533 (2024): This bill introduces new requirements for local ADU ordinances to ensure they align with State laws, aiming to streamline the approval process and reduce regulatory barriers for ADU construction (e.g., removes requirements for impact fees, service connections, and capacity charges in most cases). This law extends ADU amnesty to ADUs and JADUs that were constructed without a permit before 2020 (while previous law gave amnesty to structures built before 2018). In addition, AB 2533 requires jurisdictions to post information about obtaining a permit for an unpermitted ADU/JADU on its website. • SB 1077 (2024): This legislation requires the California Coastal Commission and HCD to develop guidance on the development of ADUs and JADUs in coastal areas, addressing unique challenges in these regions.
• AB 3057 (2024): This law streamlines the process for local governments to permit and facilitate the construction of JADUs, creating more affordable living spaces throughout the state.
282
Jan 13, 2025
Town of San Anselmo
525 San Anselmo Avenue
San Anselmo, CA 94960
By Email: [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected] CC: [email protected]; [email protected]; [email protected]; [email protected]
Re: Proposed Amendments to the Town’s Accessory Dwelling Unit and Junior Accessory Dwelling Unit Regulations
Dear San Anselmo Town Council,
The California Housing Defense Fund (“CalHDF”) submits this letter as a public comment concerning item 2.1 on the agenda for the Town Council meeting scheduled for January 14, 2025, an amendment to the Town’s regulations for ADUs and JADUs. This proposed ordinance fails to comply with state law in several ways, and the Town should address these problems before approving the ordinance.
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, Government Code section 66323 prescribes a narrower set of ADU types that cities have a ministerial duty 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.) Local governments may not impose their own standards on such ADUs. (Gov. Code, § 66323, subd. (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).”].) 360 Grand Ave #323, Oakland 94610
[email protected]
283
In addition, ADUs that qualify for the protections of Government Code section 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.”
Impermissible Parking Requirements
Town code section 10-6.303 requires parking for each new ADU, less certain exceptions.
However, as discussed supra, Government Code section 66323 mandates that the Town 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 Town cannot subject such ADUs to parking requirements.
Impermissible Owner-Occupancy Requirement
Town code section 10-6.202(b)(3) appears to impose an owner-occupancy requirement on ADUs constructed after January 1, 2025:
“All ADUs that are permitted on or after January 1, 2025 require owner-occupancy as a place permanent residence. [sic] Owner-occupancy shall not be required if the owner is another governmental agency, land trust, or housing organization.” State law forbids the imposition of owner-occupancy requirements. Government Code Section 66315 states (emphasis added), “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.” CalHDF notes that before 2023, the state ADU law allowed local jurisdictions to require owner occupancy of ADUs constructed after January 1, 2025, but the law was amended by AB 976 to prohibit owner-occupancy requirements indefinitely. The Town should update its understanding of the state ADU law and conform its ADU ordinance to the law’s current requirements.
Out-of-Date Reference
Town code section 10-6.202(d) refers to Government Code section 65852.26. However, this section of code has been moved to Government Code section 66341. 2 of 5
284
Impermissible Standards
Town code section 10-6.202(i)(1) imposes the following:
All ADUs and JADUs shall comply with all applicable building, fire, safety, and environmental regulations including Title 9 Building Regulations, Title 6, Chapter 8, Urban Runoff Pollution Prevention and Title 7, Chapter 12, Watercourses unless otherwise provided for in this chapter or as required by State law.
A search of the Town’s Code reveals that Urban Runoff Pollution Prevention is located in Title 5, Chapter 8, not Title 6, Chapter 8.
More importantly, the Town cannot impose all the various regulations of Title 5, Chapter 8 (Urban Runoff Pollution Prevention) on ADUs that qualify for the protection of Government Code section 66323. The Town must approve such ADUs with a building permit and may not require them to comply with the town’s requirements for a flatwork permit, site design measures, a Stormwater Control Plan, and a Stormwater Facilities Operation and Maintenance Plan (O&M Plan). Furthermore, these various measures are overkill for what are inherently very small residential structures.
Impermissible Deed Restriction Requirements
Town code section 10-6.202(n) requires a deed restriction to be placed on the property prior to the issuance of a building permit for an ADU. This is a clear violation of Government Code section 66323, which prohibits any standards not explicitly authorized in that section. Deed restrictions are also not permitted by Government Code section 66315, which forbids standards not listed in section 66314, and it is unclear why the Town 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. The January 2025 HCD ADU Handbook specifically forbids deed restrictions as a condition of ADU development (see page 22).
Additionally, such deed restrictions imposed on ADUs (or on other accessory structures) are unenforceable. This is due to the absence of horizontal privity between the Town and the applicant. In other words, since the Town 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.)
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Impermissible Discretionary Process
Code section 10-6.305. creates a discretionary process for certain ADUs that do not conform to the standards within this chapter. 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 ...” CalHDF understands that the Town may wish to allow ADUs that go beyond what state law and the Town’s local ordinance allows. But if the Town wishes to create a path for approval of certain ADUs , then it should write objective criteria into its code and allow ministerial approval by Town staff. Maintaining an objective, discretionary process for all ADU approvals is crucial for maintaining transparency and predictability in the permitting process – an especially important objective in the ADU context, where most applicants are homeowners unfamiliar with local land use processes and should not be expected to navigate the vagaries of a discretionary process.
⧫ ⧫ ⧫
CalHDF appreciates the Town’s effort to implement state law governing ADU construction..
However, the Town should amend its ordinance to ensure that it complies with state law.
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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Public Hearing to Consider
Amendments to Title 10, Chapter 6,
Accessory Dwelling Units
Town Council
February 11, 2025
288
• Public hearing to consider
adoption of an Ordinance
amending the Zoning Code
• Accept public comments
• Next steps
Purpose
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Background
• Town ADU/JADU regulations are
found in Title 10, Chapter 6 (“ADU
Ordinance”)
• ADU Ordinance last amended in
2022 in response to State law
• Additional State laws regulating
ADUs have been adopted:
• HCD published 2025 ADU Handbook
• AB 1033
• AB 976
• AB 434
• SB 1211
• AB 2533
• SB 1077
• AB 3057
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Proposed Amendments
• Proposed amendments to the Zoning Code would
comply with recent changes to State law:
• Maximum number of detached ADUs on lots with
multi-family dwellings
• No replacement parking required for demolition of
uncovered parking
• Maximum of 2 ADUs + 1 JADU on lots with single-family dwellings
• New definitions for livable space and objective
standards
• Renumber Government Code sections and Muni Code
references
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Proposed Amendments (Continued)
• Proposed amendments to the Zoning Code
would comply with recent changes to State law:
• Extend unpermitted ADU amnesty granted by the
State
• Remove owner occupancy and deed restriction
requirements for ADUs
• Clarify maximum ADU size to be 850 square feet or
1,000 square feet (based on bedroom count)
• Clarify where and how many JADUs are allowed in
the town and limitations to JADU design
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Comment Letter
• The Town has received 2 comment letters
from a non-profit requesting amendments to
the proposed ADU Ordinance
• Comments focus on what regulations can be
levied on exempt ADUs and non-exempt
ADUs
• Exempt ADUs: ADUs/JADUs created pursuant to Govt
Code § 66323. Local agency may not impose standards
beyond State requirements.
• Non-Exempt ADUs: ADUs/JADUs that don’t meet Govt
Code § 66323.
• The Town has modified the proposed ADU
Ordinance to address these comments, where
appropriate
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Response to Comment Letter
Comment Town Action
Out-of-Date
References
The proposed Ordinance
referenced old Code sections
The proposed Ordinance corrects
outdated references
Impermissible
Standards
The Town cannot require
conformance with Title 5,
Chapter 8 (Urban Runoff
Pollution Prevention) and Title
7, Chapter 12 (Watercourses)
for exempt ADUs
State law allows the Town to levy
requirements on exempt ADUs for
public health and safety*
* Referenced provisions in the Municipal Code remain unchanged since the last update to the ADU Ordinance in 2022, which was approved by HCD. 294
Response to Comment Letter
Comment Town Action
Impermissible
Parking
Requirements
The Town cannot levy parking
requirements on exempt ADUs
The proposed Ordinance does not
levy parking requirements on exempt
ADUs
Impermissible
Discretionary
Process
The Town cannot require a
discretionary process for
approval of non-exempt ADUs
State law does not prohibit a
discretionary process. The proposed
Ordinance clarifies non-exempt ADUs
may seek ministerial approval through
objective design standards
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Recommendation
• That the Town Council hold a public hearing and
consider Zoning Ordinance Amendments to Title
10, Chapter 6 “Accessory Dwelling Units” and the
associated California Environmental Quality Act
(CEQA) findings.
• Motion to read the attached Ordinance by title
only. The Town Manager will read the full title of
the Ordinance.
• Motion to approve the first reading of the
Ordinance Amendments and waive future
readings in their entirety.
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Questions?
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