AB 881 et al.: ADU laws

In response to the state's housing crisis, California continues to strip local governments of their ability to regulate accessory dwelling units, or ADUs, in an attempt to promote more and cheaper housing. On Jan. 1, several new laws took effect that leave cities with fewer opportunities to enforce development standards. See Assembly Bills 881, 68, 670, 671, 139 and 587, and Senate Bill 13.

Among the many changes enacted, ADUs are now permitted on lots with multifamily dwellings, not just on lots with single-family dwellings. In certain circumstances, multiple ADUs must be allowed on the same lot. A city may no longer prohibit ADUs based on minimum lot size, and no longer has discretion to decide whether to allow Junior ADUs, or JADUs (a smaller version of an ADU that doesn't require a bathroom or full kitchen).

A city must now ministerially approve a compliant ADU or JADU application within 60 days of its submittal -- a decrease from 120 days.

A city may require only a building permit for a detached ADU up to 800-square feet in size and 16-feet tall on a lot with a single-family and multifamily dwelling and for a converted ADU in multifamily buildings. Cities retain limited discretion to impose architectural, landscaping, lot coverage, floor area ratio, and other development standards, but some standards have to give way to allow at least an 800-square foot ADU.

The Legislature has also removed cities' authority to tailor certain policy decisions to their various communities. Before, cities could allow ADUs to be used as short-term rentals, but now cities are prohibited from doing so, with the apparent goal of increasing more permanent housing stock. Before, a city could require an owner to occupy either the primary house or the ADU on the property to ensure accountability and supervision of the ADU, but cities are now prohibited from imposing any owner-occupant requirement until 2025. And before, cities could require an owner to replace parking spaces that are lost when an existing garage is converted into an ADU, but now a city has no power to require replacement parking.

New state law requires every city and county to plan how to incentivize and promote the creation of ADUs at affordable rates as part of their mandatory Housing Elements, and cities may now choose to allow conveyance of an ADU separately from the main house, in limited circumstances.

The state has also entered into the private housing market by voiding private CC&Rs to the extent that they effectively prohibit the construction or use of ADUs or JADUs.

These new laws will void any local ADU ordinance that is not in compliance with the new requirements. Cities without a compliant ordinance will only be able to apply the few standards established by Government Code sections 65852.2 and 65852.22 as pre-conditions to issuing building permits.

Todd Leishman, who is of counsel at Best Best & Krieger LLP, helps public agencies and private developers create successful projects by applying his experience in environmental law and real estate. With a background in public policy and local government law, Todd is also a sought-after adviser on issues surrounding short-term rentals, sober-living facilities and other housing matters.

Isaac M. Rosen is an associate with Best Best & Krieger LLP, working out of their Los Angeles office on assorted advisory work for local agencies, including cities, special districts and Joint Powers Authorities.