New California Housing Laws: AB 68 Accessory Dwelling Units

Farella Braun + Martel LLP

Farella Braun + Martel LLPOn January 1, 2020, several housing-related bills recently signed into law by the Governor take effect. We will explain the upcoming changes in housing law through a series of updates. Our first update provided information regarding tenant protections (Assembly Bill 1482). Our second update focused on changes to the permitting and approval process for housing developments (Senate Bill 330). Our third update focused on a new law designed to further facilitate and expedite the permit review of certain housing developments (Assembly Bill 1485). This final update explains the additional changes to regulations regarding Accessory Dwelling Units (ADU) through Assembly Bill 68.


Accessory Dwelling Units (Assembly Bill 68)

Over the last few years, there has been a notable push from local and state government to incentivize the creation of Accessory Dwelling Units (also known as in-law units) as one of several ways to address the housing crisis. Assembly Bill 68, sponsored by Assemblyman Phil Ting (D-San Francisco), builds upon recently adopted state laws to provide more flexibility as to where and how ADUs can be created. AB 68 also places additional restrictions on local governments from adopting ordinances that would hinder the creation of ADUs.

Expansion of Ministerial Approval

AB 68 requires ministerial approval (rather than a discretionary approval process) for a wider range of ADU types. Under existing law, local agencies must ministerially approve applications for one ADU per single-family lot if the unit is contained within the existing space of the single-family dwelling or accessory structure, has independent exterior access from the existing residence, and the side and rear setbacks are sufficient for fire safety.

Under AB 68, local agencies will be required to ministerially approve one ADU and one Junior ADU (JADU) (defined as a unit no more than 500 square feet in size and contained entirely within an existing single-family structure) per lot that is within an existing structure; one detached ADU within a proposed (new construction) or existing structure or the same footprint as the existing structure, along with one JADU; multiple ADUs within existing multifamily structures; or two detached ADUs on a multifamily lot.

However, AB 68 sets a cap on the number of ADUs that must be ministerially approved within an existing multifamily dwelling, requiring that local agencies allow at least one ADU and up to 25% of the existing multifamily dwelling units thereafter. AB 68 also sets a cap on the total floor area of an attached ADU, which cannot exceed 50% of the existing primary dwelling.

Removal of Owner-Occupancy Requirement

One significant change under AB 68 is elimination of the requirement for owner occupancy of either the primary dwelling or the ADU. Instead, the bill strengthens the existing requirement that ADUs be used for rental terms of at least 30 days by requiring that local governments mandate 30-day minimum rentals for ADUs.

Prohibitions on Local ADU Laws

To further remove barriers in the creation of ADUs, AB 68 prohibits local governments from enacting ADU ordinances that would do the following:

  • Impose requirements on lot coverage or minimum lot size.
  • Allow more than 60 days to ministerially approve an ADU or JADU permit application if there is an existing single-family or multifamily dwelling on the lot.
  • Set a maximum ADU size that does not allow an ADU of at least 800 square feet and 16 feet in height.
  • Require replacement parking when a garage, carport, or covered parking structure is demolished to create an ADU, or is converted to an ADU.
  • Require a setback for ADUs within existing structures, and new ADUs located in the same location and footprint as existing structures, and no more than a four-foot side and rear yard setback.
  • Require, as a condition for ministerial approval of an application, correction of physical conditions that do not conform with current zoning standards.

Strengthened Oversight

While existing law already requires local agencies to submit their ADU ordinances to the state’s Department of Housing and Community Development (HCD) for review and comments, AB 68 adds the ability for HCD to submit findings to local agencies if an ADU ordinance is not in compliance with state ADU laws, and to notify the Attorney General if a local agency chooses not to amend their ADU ordinance to meet state requirements.

For more on AB 68, click here

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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