News and Blog

Since it has been several months since I last wrote in this blog about my own ADU project, it seemed that people might be curious to know where things stand.  Also, reflecting general increased interest and activity in this type of housing stock, I have been seeing more ADU matters in my own law practice.  Given these developments, I thought it was time to revisit this topic.

When Lisa and I first began talking about the idea of an ADU, we sought a general idea of the cost from a general contractor who works with another professional we know, and it was clear that a “stick-built” ADU would be significantly more expensive than a Villa prefab unit.  As we proceed with planning for our home remodel project to follow after we complete our ADU, we continue to see support for that conclusion.

At present, Villa is seeking to resolve certain minor comments that the City of Los Altos made to the ADU plans they submitted in late June in order to obtain final approval.  We expect that will occur within the next few weeks.  At that point, we expect that the construction of our ADU at the factory and installation on our property will take approximately four to six months.

We might even be further along, however, had we gotten our own survey of our property before starting, as we spent more time than expected on the choice and location of our ADU model due to where I thought our property lines extended.  We made a preliminary decision on the model and placement of our ADU based on where I believed the lot lines of our corner parcel to be, but we learned from the survey Villa commissioned for our project that the actual lot lines were about 8’ further in from each street.  Since that meant that our ADU would be closer than we expected to the main house, we spent time reconsidering the model and intended placement of our ADU.  Had we gotten a survey first, we would have learned this fact sooner and might have made a quicker decision about the selection and placement of our ADU.

Be that as it may, we are still excited about this project and looking forward to being able to move forward with our ADU.  We also count ourselves as fortunate, because we find ourselves in a better situation than one that I encountered in my law practice recently.  In spite of California’s demonstrated need for housing and the state’s legislative efforts to promote housing construction, there remains substantial resistance to the state’s encouragement of such development (including ADUs) in some circles.

We’ve all heard stories about cities declaring themselves mountain lion habitats as they try to exclude themselves from these laws, and maybe even laughed about their absurdity.  Truth be told, however, this intransigence imposes real harm on real people seeking to pursue housing development projects, thus forcing them to take legal action.  I have previously noted in this blog how local jurisdictions have been severely punished for improperly placing obstacles in the way of housing development, and it seems this impulse continues unabated.

Recently, a client asked for my assistance in pursuing the approval of an ADU on his property in an unincorporated woodland area within the Coastal Zone here in the Bay Area.  Despite the fact that the property’s woodland zoning allowed residential use, and that the client had previously built an approved primary residence on the property, the local authority refused to allow an ADU on the property based on its restrictive Coastal Zone ADU ordinance, which allows ADUs only in areas zoned R1, R2 or R3, even if residential use is otherwise allowed, as with this property.  Unless my client wants to bring a lawsuit against that jurisdiction challenging its overrestrictive ordinance, however, he will be unable to add an ADU to his property, despite the broad language of state law allowing ADUs to be built wherever zoning allows residential use (not just R1, R2 or R3 zones).

As the state keeps trying to get more housing built in California, local governments keep pushing back against its efforts, and it is unclear to me whether the state’s current actions can overcome their opposition.  Even in the ADU arena, which ought to be relatively smooth sailing, getting past those barriers continues to be challenging.  While it may be a tough slog, however, it is important to keep up the efforts, as the rewards are substantial and the consequences of failure are stark.

Accessory dwelling units (“ADUs”) have become simpler to build and more popular in California as a result of legislative changes at the state level.  The intent of these changes has been to clarify those laws, as well as to remove red tape and regulatory barriers at the local level.  In particular, California laws passed in recent years have changed the rights and obligations of ADU builders with respect to parking.

For many years, until 2020, a number of cities put onerous parking requirements on new ADUs. This changed in January 2020.

First, a city can only require one parking space per ADU or per bedroom, whichever is less. The parking spaces may be tandem (one space in front of the other) on a driveway.

Second, if you are converting a garage or carport or other covered parking structure to an ADU (or demolishing it as part of an ADU installation), you do not have to replace that parking.

Third, a city cannot require you to add or change the parking on your property if any of the following apply:

• The ADU is within a half mile of public transportation.
• The ADU is in a district that has been deemed architecturally and historically significant.
• The ADU is part of the primary home or an accessory structure to the primary home.
• On-street parking permits are required but not issued to ADU occupants.

The California department of Housing and Community Development has issued a summary memo about these and other changes to California law concerning ADUs. You can view it here.

California law governing ADUs has been revised pursuant to two new “clean up measures”, SB 897 and AB 2221, which went into effect January 1, 2023. These new laws clarify and correct several different unforeseen barriers to the approval and construction of ADUs that had surfaced after the adoption of previous ADU legislation by the state.  These revisions will require local authorities to review and update their local ADU ordinances in order to conform to state law.

One important change provided under these new laws is the requirement that local standards imposed on ADUs be objective, in order to eliminate barriers that had arisen to the construction of ADUs.  The new law defines an “objective standard” as a standard that involves no personal or subjective judgment by a public official and that is uniformly verifiable.  In addition, these new laws allow detached ADUs to be constructed in a detached garage, and exempt ADUs from triggering fire sprinkler requirements in existing primary dwellings due to total increased dwelling square footage on the property.

Further, local agencies can no longer deny ADU applications based on existing nonconforming zoning conditions, building code violations, or other unpermitted structures located on the property that do not threaten public health and safety.  Minimum height limits have also been revised, and front setback requirements can no longer be used to prevent ADU construction.  Parking standards can no longer be imposed on ADUs included in applications to create new single-family or multifamily dwellings, and local agencies cannot require modifications to existing multifamily dwellings with setbacks of less than four feet.  Finally, local authorities are required to issue demolition permits to replace detached garages with ADUs, and they cannot deny building permits for unpermitted ADUs constructed before January 1, 2018, unless they are deemed substandard under California housing law.

These changes are expected to reduce the cost of some ADU projects, expedite their permitting, and generally make such projects more commercially viable. For example, these new regulations can change the sequence of construction of multiple new buildings on the same lot. Before these changes went into effect, builders who wished to build both a multifamily structure and an ADU on the same lot had to build them in series, adding cost and time to both projects. Now, if practical, both buildings can be planned, built and go on the market at the same time. It is expected that this will result in more affordable housing and more housing availability.

We will have to wait and see whether these new measures, together with those existing laws on the books, will continue to remove roadblocks to ADU construction in California.  The text of SB 897 can be found here, and the text of AB 2221 can be found here.

As you may know, accessory dwelling units (“ADUs”) have been an interest of mine here for several years as one of the many ways that the California legislature has tried to address our housing shortage.  For those of you who are not familiar with this subject, ADUs, which were formerly known under California law as “secondary units”, and which are also known as “granny flats” or “in-law units,” are separate housing units located on the same lot as your primary residence.  These projects have become increasingly popular in our Golden State as they can provide rental income, a space for aging family members, or a private guesthouse, especially in view of our acute need for more housing.

Having now written about this subject for several years, my better half Lisa and I are about to start our own ADU project at our Los Altos home.  Like many domestic building projects, this one is a story of how one smaller idea leads to another.  Here, Lisa and I wanted to increase our home office space, but that concept grew out of necessity to a larger home remodeling project, which then led to concern about what we would do while our house was being remodeled.  As we had heard cautionary tales from several of our friends and neighbors about living in a home during remodeling, we decided that our best approach to the issue would be to install an ADU on our property; we could live in the ADU during our remodeling project and then rent it out once it was completed, with the possibility of using it as housing for caretakers for us in the future if necessary.

We are just about ready to start our ADU project with Villa Homes.  We decided to work with Villa Homes because I had done some legal work for them as outside counsel a few years back.  That experience gave me a good experience and relationship with the company and its leadership, and so we believe that Villa Homes will be able to deliver to us a quality ADU project on time and within budget.

As with all construction projects, however, once should hope for the best and prepare for the worst, so we are readying ourselves for all possible contingencies.  I plan on posting project updates on my ADU website as they occur.  Wish us luck!

In January 2020 we wrote about a flurry of new measures passed by the California legislature that, taken together, were designed to stimulate the development of ADUs Units throughout California.  Santa Clara County also announced a new zoning ordinance that implements these measures, which was adopted in March 2020.

“Santa Clara County provides for secondary dwellings (or Accessory Dwelling Units, or ADUs) in zoning districts that allow residential uses. There are provisions specific to rural zoning districts and urban unincorporated districts, and they vary based on lot size. ADUs may be attached or detached, newly built spaces or converted from an existing structure. An ADU must have its own living, sleeping, eating, cooking, and sanitation facilities, including a full kitchen and bathroom. Additionally, a Junior ADU (Jr. ADU) is no more than 500 square feet and must be contained entirely within a single-family residence. It must have a separate entrance and an efficiency kitchen but may share a bathroom with primary dwelling.”

We recently offered an educational overview on California ADU developments designed for real estate agents, builders, and interested lay persons. It is available on our website by registering for download ().

As the regulatory climate has become more favorable, and more local jurisdictions are liberalizing their local zoning in response to state guidance, it is no surprise that architects, builders, and other professionals have begun to offer customized services for ADU or junior ADU projects. As our readers engage with professionals in the context of their ADU projects, we would be pleased to publish professional service reviews for the benefit of those looking for help on their projects.  If you can help us with this, please drop me a line.