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Legislature Further Limits Local Regulation of Accessory Dwelling Units

Posted by Steven Banks | Jan 24, 2023

As the California legislature continues its efforts to address the shortage of housing in the state, the new year will usher in more revisions to the laws affecting accessory dwelling units (“ADUs”) and junior accessory dwelling units (“JADUs”). A number of the revisions expressly codify existing practices of local permitting agencies. However, some of the other revisions continue to lower the bar for construction of ADUs and JADUs. This article will briefly summarize the changes brought by Senate Bill (SB) 897, which was approved on September 28, 2022, becomes effective on January 1, 2023, and voids and nullifies any nonconforming local ADU and JADU ordinances.

SB 897 amends Government Code Section 65852.2 in various ways. It revises application review procedures and places more restrictions on denials. It now expressly requires that ADU standards be “objective” and defines an “objective standard” as one that (1) involves no personal or subjective judgment by a public official; and (2) is uniformly verifiable by reference to an external and uniform benchmark or criterion available and knowable by both the development applicant or proponent and the public official prior to submittal.

Permits for ADUs and the demolition of garages they are replacing must be processed simultaneously. ADU application denials must include a full set of comments specifically listing the defective or deficient items and how the application can be remedied. ADU applications cannot be denied due to zoning, building code, or permit violations elsewhere on the lot that do not threaten public health and safety and are unaffected by the ADU's construction.

SB 897 also loosens height and setback restrictions. Presently, an ADU can be an attached or detached unit and must meet certain locally-established size, height, and setback requirements, including a 16-foot height limitation and four-foot side and rear setback requirements. SB 897 increases the maximum height limitation a local agency can impose on an ADU to 18 feet if the ADU is within a half-mile walking distance of a “major transit stop” or “high-quality transit corridor” or if the ADU is detached and on a lot with an existing multifamily, multistory dwelling. Local agencies must also allow an additional two feet in height to accommodate a roof pitch on the ADU that is aligned with the roof pitch of the primary dwelling. If the ADU is attached to a primary dwelling, under SB 897 local agencies can impose no more than a maximum 25-foot height limitation but can still limit ADUs to two stories.

SB 897 also allows ADUs to be constructed closer to property lines. If an existing multifamily dwelling has a rear or side setback of less than four feet, SB 897 prohibits a local agency from requiring any modification to the existing multifamily dwelling to satisfy the height and setback requirements. It also prohibits local agencies from rejecting an ADU application because the existing multifamily dwelling violates those requirements. Additionally, now front-yard setbacks must yield if necessary to permit at least an 800 square foot ADU with four-foot side and rear yard setbacks.

About the Author

Steven Banks

Senior Associate Practice Areas: Community Association Counsel Construction Litigation Civil Litigation Steven Banks joined the firm in 2017 as a Senior Associate. Steve has been practicing law for over thirty years. Practicing primarily in litigation, his experience also includes homeowners as...


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