Dec 15, 2025
City of San Jose
130 Avram Avenue
Rohnert Park, CA 94928-1180
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Re: Proposed Amendments to the City’s ADU Regulations
Dear San José City Council,
The California Housing Defense Fund (“CalHDF”) submits this letter as a public comment regarding item 10.1(a) for the Council meeting of December 16, 2025, an update to the City’s zoning text. Specifically, CalHDF writes to comment on the City’s proposed regulations for the construction of accessory dwelling units (“ADUs”) and junior accessory dwelling units (“JADUs”).
There are specific portions of the City's ADU regulations that violate state law, and the City should correct these issues before passing 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 establishes a narrower set of ADU types that local governments 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
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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).”].)
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 Size Limits on ADUs
City code section 20.80.176(B)(4) limits detached ADUs on multifamily parcels developed pursuant to Government Code section 66323 to 800 square feet in size.
However, the City may not impose any size limits on ADUs eligible for the protections of Government Code section 66323, subdivision (a)(4). Subdivision (a)(4) allows the development of up to eight detached ADUs on multi-family parcels without size restriction
Government Code section 66323, subdivision (b) states, “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).” This means that the City cannot impose any standards on section 66323 ADUs beyond what is specifically allowed in that section of state law, including size limits for ADUs developed pursuant to Government Code section 66323, subdivision (a)(4). Within section 66323, only new construction, detached ADUs on single-family parcels developed pursuant to subdivision (a)(2) are subject to size limits.
See pages 18-20 of the January 2025 HCD ADU Handbook for more information on section 66323 ADUs.
The City must amend its ADU ordinance to remove this impermissible size limit.
Duty to Allow An Additional Two Feet in Height
City code section 20.80.176(B)(5) limits detached ADUs on multifamily parcels developed pursuant to Government Code section 66323 to 18 feet in height.
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However, Government Code section 66321, subdivision (b)(4)(B) allows for ADUs on multifamily parcels near transit to be up to 20 feet in height (emphasis added):
A height of 18 feet for a detached accessory dwelling unit 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 Section 21155 of the Public Resources Code. A local agency shall also allow an additional two feet in height to accommodate a roof pitch on the accessory dwelling unit that is aligned with the roof pitch of the primary dwelling unit.
The City must amend its code to allow this additional two feet in height.
Out-of-Date Reference
City code section 20.80.176 references Government Code section 65852.2, subdivision (e).
However, state ADU law has been reorganized, and this code section should now referenced Government Code section 66323. The City should update its code accordingly.
Additionally, this code section should reference Government Code section 66314 rather than 66313, as section 66313 is the definitions section of the state ADU law.
JADUs, Owner Occupancy Requirement, and SB 543
City code section 20.80.178(D) requires owner occupancy for properties that contain a JADU.
However, the City should also be aware that SB 543 will be effective on January 1, 2026. In addition to other provisions, SB 543 forbids the application of owner occupancy requirements to properties with a JADU when the JADU has its own bathroom.
The City should update its code accordingly.
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It is laudable that the City is updating its ADU regulations as state law changes. However, the City should make sure that its zoning regulations comply 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.
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