On August 30, 2016, the California Legislature approved Senate Bill 1069 (“SB 1069”), which reduces restrictions on building accessory dwelling units (“ADUs”) on residential property. Governor Brown signed the bill into law on September 27, 2016, along with a companion measure, Assembly Bill 2299 (“AB 2299”). AB 2299 together with SB 1069 amend the Government Code to address how local agencies may regulate ADUs.

Background

ADUs, also known as “granny flats” or “second units,” are attached or detached residential dwelling units which provide independent living facilities for one or more persons. ADUs are defined as any structure that provides permanent provisions for living, sleeping, eating, cooking, and sanitation on the same parcel of land as the single-family dwelling. ADUs can include efficiency units and manufactured housing. These units are often used to provide housing for family members, students, the elderly, in-home health care providers, and individuals with disabilities, at below market prices within existing neighborhoods. SB 1069 asserts that ADUs are part of the solution to the current affordable housing crisis in California.

What Does SB 1069 Do?

SB 1069 imposes maximum standards that local agencies must use to evaluate proposed ADUs. Local agencies with ADU ordinances or that plan to implement ADU ordinances must ensure that their ordinances provide for all of the following:

• Designated areas within the jurisdiction where ADUs are permitted, which are based upon criteria that include the adequacy of water and sewer services and the impact of ADUs on traffic flow and public safety;
• Impose standards on ADUs including, but not limited to, parking, height, setback, lot coverage, architectural review, and maximum size of the unit;
• Exclude ADUs from maximum density calculations for the lot upon which the ADU is located;
• Determine that ADUs are a residential use consistent with the existing general plan and zoning designation for the lot;
• Require that ADUs not be sold separately from the primary residence and may only be rented or used in conjunction with the primary residence;
• Mandate that the lot on which the ADU is located is zoned for single-family or multifamily use and contains an existing, single-family dwelling;
• Require that the ADU is either (1) attached to the existing dwelling or located within the living area of the existing dwelling; or (2) detached from the existing dwelling and located on the same lot as the existing dwelling;
• Limit the increased floor area of an ADU to fifty percent (50%) of the existing living area, with a maximum increase in floor area of 1,200 square feet;
• Prohibit detached ADUs from exceeding 1,200 square feet in total area in floorspace;
• Eliminate the requirement for passageways (a pathway that is unobstructed clear to the sky and extends from a street to one entrance of the ADU) in conjunction with the construction of an ADU;
• Abolish setback requirements for an existing garage that is converted to an ADU;
• Require a setback of no more than five (5) feet from the side and rear lot lines for ADUs constructed above a garage;
• Include local building code requirements that apply to detached dwellings, as required;
• Mandate approval by the local health officer where a private sewage disposal system is being used, if required;
• Limit parking for ADUs to one parking space, which may be provided as tandem parking on an existing driveway, per unit or per bedroom (this provision does not apply if the ADU is exempt from parking restrictions, which are discussed below);
• Allow off-street parking in setback areas determined by the local agency or through tandem parking, unless specific findings are made (this provision does not apply if the ADU is exempt from parking restrictions, which are discussed below); and
• Require off-street parking space replacements, as dictated by the local agency be located in any configuration on the same lot as the ADU (this provision does not apply if the ADU is exempt from parking restrictions, which are discussed below).

ADU Permit Approval Process

In an effort to expedite the permit approval process, SB 1069 also imposes two (2) requirements relating to the ADU construction permit approval process. When reviewing permits for ADU construction, the local agency must consider the application within 120 days, regardless of whether the agency has an ordinance governing ADUs. Review must also be done ministerially, meaning without discretionary review or a hearing. In the permitting process, the local agency also has the option of requiring applicants for an ADU construction permit to be an owner-occupant or that the property be used for rentals for terms longer than thirty (30) days.

Parking

Parking standards are prohibited for ADUs (1) located within one-half mile of public transit, (2) located within a historically and architecturally significant historic district, (3) located within one block of a car share vehicle, (4) which are a part of the existing primary residence or existing accessory structure, or (5) where on-street parking permits are required but not offered to the ADU occupant.

Utility Fees

Duplicative utility hook-up fees for ADUs, which have already been paid for by the owner of the main unit, are also eliminated under SB 1069. Specifically, ADUs are not considered new residential uses for the purposes of calculating local agency connection fees or utility capacity charges.

No Exemptions

Before SB 1069, local agencies could prevent the construction of ADUs by finding that the ADU would result in an adverse impact on the public health, safety, and welfare, and may limit housing opportunities of the region. With the passage of SB 1069, local agencies may no longer block ADU construction in this manner.

Maximum and Minimum ADU Size Requirements

No minimum or maximum size for an ADU may be established in a manner which prohibits an efficiency unit from being constructed in compliance with local development standards. Efficiency units are dwellings which are occupied by no more than two (2) persons, have a minimum floor area of 150 square feet, and may also have a partial kitchen or bathroom facilities.

Local Agencies Without ADU Ordinances

Local agencies without ADU ordinances must follow the procedures outlined in the section entitled “ADU Permit Approval Process.” Further, the local agency must ministerially approve an application for an ADU building permit pursuant to the requirements set forth in the section entitled “What Does SB 1069 Do?”

Alternative ADU Approval Process

SB 1069 also provides for an approval process separate from the requirements listed in the section entitled “What Does SB 1069 Do?” This process would, regardless of whether the local agency does or does not have an ADU ordinance, require a local agency to ministerially approve an ADU building permit if:

• The permit seeks to create within a single-family residential zone one ADU per single-family lot if the unit is contained within the existing space of a single-family residence or accessory structure;
• The ADU has independent exterior access from the existing residence; and
• The side and rear setbacks are sufficient for fire safety, but fire sprinklers are not required if the primary residence does not need them either.

ADUs will also not be considered to exceed the allowable density for the lot upon which it is located, and will be deemed to be a residential use consistent with the existing general plan and zoning designations for the lot.

Setbacks

Setback requirements on ADUs may be a future area of controversy. Aside from ADUs constructed above or in existing garages, SB 1069 does not give guidance on maximum or minimum setback distances for ADUs. This is concerning, considering that local agency setback requirements have been a major barrier to the construction of ADUs. Some supporters of SB 1069 have even advocated for the complete elimination of setback requirements.

Specifically, the lack of guidance on setbacks could pose an issue where a permit applicant seeks to construct an ADU under the alternative process detailed in the section entitled “Alternative ADU Approval Process.” SB 1069 does not specify what setbacks are considered “sufficient for fire safety,” and does not indicate which entities or individuals are authorized to implement such standards. Even if a local agency implements an ordinance detailing sufficient setback requirements for fire safety, the permit applicant may oppose the agency’s decision. It is therefore advised that the local agency implement guidelines for evaluating what side and rear setbacks for ADUs would be sufficient for fire safety.

Another conflict may arise where the local agency’s residential setback requirement makes it impossible for an ADU to be constructed on the property. For example, the section above entitled “Maximum and Minimum ADU Size Requirements” notes that SB 1069 prohibits local agencies from establishing minimum and maximum sizes for an ADU in a manner which prevents construction of an efficiency unit in compliance with local development standards. If the ADU to be built is 150 square feet, and the local agency’s setback requirement is the only factor preventing approval of the ADU construction permit, it is unclear whether the setback or the requirement will need to be compromised to allow ADU construction, or if ADU construction can be prohibited under these circumstances. It is therefore recommended that local agencies review how their setback requirements will affect ADU construction in their jurisdiction.

Action Required

Municipalities and special districts will need to review their zoning ordinances, general plan, and ADU ordinances to determine compliance with SB 1069.

If you have any questions regarding the legislation or compliance, please contact Doug White at (916) 468-0947, doug@whitebrennerllp.com, or Elaine Won at (916) 468-4580, elaine@whitebrennerllp.com.