YOUR NEW NEIGHBOR IS ON YOUR LOT

LAYING THE FOUNDATION FOR ACCESSORY DWELLING UNITS IN COMMUNITY ASSOCIATIONS.

BY MATT D. OBER, ESQ.

Recently, our Legislature paved the way for a “granny flat,” “in-law suite,” or “backyard bungalow” on your private lot within a planned unit development community. Generally known as Accessory Dwelling Units or ADUs, this form of housing is a legal and regulatory term for a secondary house that shares the building lot of a larger, primary house.

The ADU is a self-contained housing unit that provides for living, sleeping, cooking, and sanitation. ADUs are either attached to or detached from the primary residence, but provide completely independent living facilities for its occupants. The Junior ADU, or “JADU”, is no more than a 500-square-foot residence within a single-family home, but has both an entrance from the main dwelling unit and an entrance to the outside. The JADU may also share a bathroom with the main residence.

Cloaked with the good intentions of addressing California’s extreme housing shortage and increasing housing density, and modeled after similar laws addressing solar energy systems, electric vehicle charging stations, drought-tolerant plants and artificial turf, Civil Code § 4751 renders void or unenforceable any CC&Rs provision or deed restriction in a planned development that effectively prohibits or unreasonably restricts the installation of an ADU or JADU.

A COMMUNITY CAN IMPOSE REASONABLE RESTRICTIONS

Although many view these new laws as unfair micromanagement negatively impacting an association’s regulation of parking, traffic, noise, and other issues characteristic of overcrowded communities, associations are not powerless. Adopting sensible architectural standards, aesthetic guidelines, and construction requirements for ADUs and JADUs are essential and perhaps the best way to welcome your new neighbor.

The laws are unclear to the extent an association can offset the above burdens of an ADU, or even to what extent architectural guidelines cross into “unreasonable restriction” territory. At minimum, in order to be considered an ADU or JADU, the living space must meet the requirements of Government Codes 65852.2 and 65852.22, which includes obtaining formal approval by local agencies and compliance with applicable building codes.

NEW LEGISLATION SUPPORTS AND CODIFIES ADUS/JADUS

New laws leave little doubt that gates of private residential community associations will remain wide open for the development of multiple residences on what was originally designed as a single-family residential lot.

AB 3182 prohibits lease restrictions which limit rentals within a community to less than 25%. Civil Code § 4741 clarifies that if an owner occupies a portion of the property, the ADU or JADU is not to be considered occupied by a renter for purposes of that 25% rental restriction, and that any lot can have both an ADU and a JADU.

Perhaps the most glaring indication of the law’s effort to promote ADUs/JADUs in our community is the amendment to Gov. Code 65852.2 mandating that any such application for a permit shall be deemed approved by the municipality if not acted on within 60 days.

BE PROACTIVE AND PREPARE

The best protection for any community concerned about the impact of ADUs/JADUs is to be proactive. Adopt ADU/JADU-specific architectural rules addressing the aesthetic qualities and architectural elements that will be acceptable for your particular community’s design and aesthetic standards. Among the subjects that a community should consider addressing in its rules are:

• Review colors and architectural finishes to ensure that any ADU is designed and built in a manner that is architecturally consistent with the community. It is fair to expect that converted garages match the balance of the residence, and don’t have windows installed in the middle of garage doors.

• Review landscape design standards to ensure that any ADU is designed and built to maintain consistent design standards, plant pallets and height restrictions. Make sure ADU applications include a landscape plan.

• Review governing documents to determine impact of landscape maintenance easements and drainage/ erosion control on location and construction of ADU.

• Consider the location of ADU/JADU within each lot and consider rules to limit the potential interference on neighboring owner’s privacy.

• Determine whether your CC&Rs contain view restrictions and ensure that ADU/JADU design elements protect any existing view rights.

• Review existing rental rules to make sure they expressly include occupants of ADU/JADU dwellings.

• Be prepared to require any “prefab” structure to be modified architecturally to be consistent with community design elements and aesthetics.

As with any new law that has the potential to significantly impact life in your community, we encourage boards to anticipate these issues before they arise and spend time now educating owners on what is expected before they proceed.

Matt D. Ober, Esq. is a partner of Richardson|Ober|DeNichilo where his practice is dedicated to the exclusive representation of community associations throughout California. He’s worked in the industry for more than 30 years.