New ADU Law and Peskin’s Implementing Ordinance

​State Law Making ADUs Easier Takes Effect

This week’s update summarizes a new law requiring cities and counties to approve some accessory dwelling units (“ADUs”) in residential districts without requiring public hearings. The new law mandates “ministerial” approval so long as the ADUs meet a number of standards; grants relief from numerical density limits for qualifying ADUs; and also attempts to lower the costs of construction. Sponsors and advocates hope the bill, which took effect on January 1, 2017, can help ease California’s housing shortage by incentivizing this important type of housing.

In San Francisco, Supervisor Peskin has wasted little time trying to use this new tool to add smart housing, already proposing an ordinance implementing the law.

California Eases Restrictions on Infill ADUs

One of the more celebrated pieces of legislation passed by the California legislature last year in pro-housing circles was SB 1069, which among other provisions is aimed at easing restrictions on the costs and uncertainty of adding ADUs on infill sites. It includes a number of common sense approaches to removing barriers on production of ADUs. At the same time, its standards attempt to limit impacts on surrounding homes and ensure that the ADUs are not added in incompatible locations

SB 1069 requires all local agencies to “ministerially” approve qualifying ADUs that comply with a host of standards. The location for the ADU must be on a property zoned for single-family or multifamily use that already contains an existing single-family home. The ADU unit cannot be sold separately, but it can be rented. The size of the new unit cannot exceed 50% of the existing single-family home or 1,200 square feet, whichever is larger. But it can be located within the “living area” of the existing dwelling, within an attached secondary structure, or in an existing or new detached structure.

In denser residential parts of the state, the most challenging standard is complying with all requirements relating to height, setback, lot coverage, “and other zoning requirements” generally applicable to residential construction. Setback and lot coverage requirements often combine to significantly limit the buildable area in residentially-zoned districts, so it might be challenging for many lots with single family homes to find a location where a detached ADU structure would meet all existing Planning Code or Zoning Code requirements.

A few other notable aspects of SB 1069 include exempting qualifying ADU from density restrictions, waiving separate parking requirements for ADUs within ½ mile of public transit, and waiving utility connection fees in most situations.

Tackling Implementation: Supervisor Peskin’s Ordinance

Supervisor Aaron Peskin, who since returning to the Board of Supervisors has been very active on ADU-related legislation, just last week introduced an ordinance implementing SB 1069 in San Francisco.

Supervisor Peskin’s ordinance contains a few fairly important implementations, taking advantage of SB 1069’s invitation for cities to adopt less restrictive requirements than the state law’s standards. Most important is a requirement that the Planning Department approve a qualifying ADU pursuant to SB 1069 within 120 days from receipt of the application without modification or disapproval, cutting down on an approval process that due to low staffing levels and a (still) unprecedented workload can take far longer in some cases. It reiterates that no additional parking would be required for a qualifying ADU, and that if an existing parking space is eliminated a replacement space can be located anywhere on the lot, including uncovered and tandem spaces. It exempts garages converted into ADUs from otherwise-applicable setback requirements. It also prohibits the use of these ADUs as short-term rentals, not at all surprising considering one overarching purpose of SB 1069 is to add rental housing.

The ordinance does appear to have a few ambiguities and potential inconsistencies with SB 1069, at least in its initial version, which can be easily clarified. For example, SB 1069 applies in all single-family and multifamily residential districts, but the proposed ordinance only applies in single-family zoning districts (RH-1). It would seem the ordinance should also be extended to RH-2, RH-3, RM, and RTO districts, and that Subsection (4) of San Francisco Planning Code § 207 should either be amended accordingly or refined to provide the same relief that the ordinance would extend to single-family districts. In addition, SB 1069 allows ADUs in new detached structures to be placed on a lot, but the proposed legislation only contemplates ADUs constructed entirely within the built envelopes of existing structures.

We will continue to track this ordinance as it makes its way through City Hall.

The issues discussed in this update are not intended to be legal advice and no attorney-client relationship is established with the recipient.  Readers should consult with legal counsel before relying on any of the information contained herein.  Reuben, Junius & Rose, LLP is a full service real estate law firm.  We specialize in land use, development and entitlement law. We also provide a wide range of transactional services, including leasing, acquisitions and sales, formation of limited liability companies and other entities, lending/workout assistance, subdivision and condominium work.