‘Not in My Backyard’?

Not anymore. New law gives property owners the right to build second homes on their properties.
By Lisa Esposito

To Increase Affordable housing in California, Governor Newsom signed legislation that encourages homeowners to convert their garages into living spaces and build small dwelling units in their backyards as low-income rentals. On January 1, 2020, new laws went into effect voiding restrictions in planned developments that would prevent the construction of granny flats and the conversion of garages into rental units.

From the Homeowner's Perspective, California's New Laws: 

• make available an affordable type of home to construct in California because they do not require paying for land, major new infrastructure, structured parking or elevators
• can provide a source of income for homeowners
• allow extended families to be near one another while maintaining privacy
• can provide as much living space as many condominiums; and they’re well-suited for couples, small families, friends, young people, and seniors
• give homeowners the flexibility to share independent living areas with family members and others
• allow seniors to age in place as they require more care

From the Homeowner Association's Perspective, California's New Laws:

• allow more people to become part of the association’s community without any of the "buy-ins"
• create more traffic (traveling the streets)
• allow for more use of limited parking
• create more compliance issues and increase owner/tenant situations
• create higher density, an increase in noise and an increase in nuisances
• allow for more use of common area and additional wear and tear with no additional fees to offset
• create more "AirBnb" type short term rentals, bringing in more people with no ties to the community
• bring more demands on management
• change the dynamics of communities
• provide legislative support even if the association’s CC&Rs prohibit the action
• limit board of director’s authority Here are some specific points included in the law. (Reprinted from Davis-Stirling.comby ADAMS | STIRLING PLC.)

Definition: An "Accessory Dwelling Unit" (ADU) means 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 includes permanent provisions for living, sleeping, eating, cooking and sanitation on the same parcel as the single-family or multifamily dwelling is situated. (Govt. Code §65852.2(j)(1).)

Definition: A "Junior Accessory Dwelling Unit" (JADU) means a unit that is no more than 500 square feet in size and contained entirely within a single-family residence. A JADU can include separate sanitation facilities or may share sanitation facilities with the existing structure. (Govt. Code §65852.22(h)(1).)

Garage Conversions: The legislation authorizes garage and carport conversions into ADUs or JADUs (depending on size) that can be rented. (Govt. Code §65852.2(a)(1)(D)(iii).) This will impact parking in planned developments.

Parking: Most associations already have parking problems. ADUs will exacerbate these problems. Associations that require cars be parked in garages cannot use the requirement to stop garage conversions. (Govt. Code §65852.2(a)(1)(D) (xi).) The bill voids any restrictions that would prevent the construction of ADUs. (Civ. Code §4751.)

Rules Enforcement: Associations can continue to enforce garage parking requirements, but only against those who do not convert them into ADUs. This will create rules enforcement problems for associations. Owners will not take kindly that some must follow parking rules while others are exempt.

Three Per Lot? While the law limits one JADU for each residential lot zoned for single-family residences (Govt. Code §65852.22(a)(1)), the statute is unclear on the number of ADUs that are permitted on the same lot, and the requirements vary for multi-family residential lots. It may be possible to have a garage converted to a JADU, part of the interior of the residence converted to an ADU and a detached ADU in the backyard.

Expedited Approvals: The bill expedites the approval process. Local agencies will be required to process applications within 60 days of their submission. (Govt. Code §65852.2(b).) Some applications can receive ministerial approval. (Govt. Code §65852.2(e).) That means they can be approved without a hearing notwithstanding any local ordinance regulating the issuance of variances or special use permits.

Fees Limited: In addition to streamlining applications, permit fees will be limited. Agencies cannot treat ADUs as a new residential use for purposes of calculating connection fees or capacity charges for utilities, including water and sewer service, nor can they require the applicant to install a new or separate utility connection directly between the accessory dwelling unit and the utility or impose a related connection fee or capacity charge. (Govt. Code §65852.2(f).)

Increased Parking: When a garage, carport or covered parking structure is demolished in conjunction with the construction of an accessory dwelling unit or converted to an accessory dwelling unit, local agencies cannot require that those off-street parking spaces be replaced. (Govt. Code §65852.2(a)(1) (D)(xi).)

Setback Requirements: Association setback requirements that would prevent the construction of backyard ADUs will be voided. Setbacks will be reduced to "no more than four feet from the side and rear lot lines." (Govt. Code §65852.2(a)(1)(D)(xi).)

View Restrictions: The bill does not address view restrictions.

Owner Occupancy: The law prohibits a requirement of owner occupy in the ADU (Govt. Code §65852.2(a)(6).), but permits a requirement of owner occupancy in a single family residence in which there is a JADU. (Govt. Code §65852.22(a)(2).)

Rental Period: The law allows (and in some cases requires) local agencies to impose a restriction that ADUs be rented for terms longer than 30 days. (Govt. Code §65852.2(a)(6) and (Govt. Code §65852.2(e)(4).) That means associations should include ADU rental restrictions in their rules even if no such restriction is found in their CC&Rs.

The motivation behind this type of legislation is understandable; however, the impact on homeowners associations is troubling. Not because of all the good things as listed here, but because of the drain on the association, the stripping of authority of the board of directors and the overruling of the contract we all entered and agreed to follow upon sale: our association’s CC&Rs.

Unfortunately, this legislation trumps the doctrines that many of us live under in our homeowner’s associations.

Lisa Esposito, CCAM Emeritus, is a member of the Bay Area Central Chapter CAI Board of Directors and is a frequent participant in CID industry events.