AB 68 Changes The Rules Regarding Accessory Dwelling Units

BRIDGE Housing, Bay Area, TRI Commercial, Northern California, San Francisco, Bay Area, East Bay

By Steven Vettel and CJ Higley

On January 1, several housing-related bills signed into law in late 2019 by California Governor Gavin Newsom took effect, including Assembly Bill 68 (AB 68), which changed regulations with respect to Accessory Dwelling Units (ADUs).

Over the last few years, there has been a notable push from local and state government to incentivize the creation of Accessory Dwelling Units (also known as in-law units) as one of several ways to address the housing crisis. AB 68, sponsored by Assemblyman Phil Ting (D-San Francisco), builds upon recently adopted state laws to provide more flexibility as to where and how ADUs can be created. AB 68 also places additional restrictions on local governments from adopting ordinances that would hinder the creation of ADUs.

Expansion of Ministerial Approval

Vettel
Vettel

AB 68 requires ministerial approval (rather than a discretionary approval process) for a wider range of ADU types. Under existing law, local agencies must ministerially approve applications for one ADU per single-family lot if the unit is contained within the existing space of the single-family dwelling or accessory structure, has independent exterior access from the existing residence, and the side and rear setbacks are sufficient for fire safety.

Now, per AB 68, local agencies are required to ministerially approve:

  • One ADU and one Junior ADU (JADU) (defined as a unit no more than 500 square feet in size and contained entirely within an existing single-family structure) per lot that is within an existing structure; 
  • One detached ADU within a proposed (new construction) or existing structure or the same footprint as the existing structure, along with one JADU; 
  • Multiple ADUs within existing multifamily structures; or 
  • Two detached ADUs on a multifamily lot.

AB 68 also sets a cap on the number of ADUs that must be ministerially approved within an existing multifamily dwelling, requiring that local agencies allow at least one ADU and up to 25% of the existing multifamily dwelling units thereafter. The new regulations also set a cap on the total floor area of an attached ADU, not-to-exceed exceed 50% of the existing primary dwelling.

Removal of Owner-Occupancy Requirement

A significant change under AB 68 is elimination of the requirement for owner occupancy of either the primary dwelling or the ADU. Rather, the bill strengthened the existing requirement that ADUs be used for rental terms of at least 30 days by requiring that local governments mandate 30-day minimum rentals for ADUs.

Prohibitions on Local ADU Laws

To further remove barriers in the creation of ADUs, AB 68 prohibited local governments from enacting ADU ordinances that do the following:

  • Impose requirements on lot coverage or minimum lot size.
  • Allow more than 60 days to ministerially approve an ADU or JADU permit application if there is an existing single-family or multifamily dwelling on the lot.
  • Set a maximum ADU size that does not allow an ADU of at least 800 square feet and 16 feet in height.
  • Require replacement parking when a garage, carport, or covered parking structure is demolished to create an ADU, or is converted to an ADU.
  • Require a setback for ADUs within existing structures, and new ADUs located in the same location and footprint as existing structures, and no more than a four-foot side and rear yard setback.
  • Require, as a condition for ministerial approval of an application, correction of physical conditions that do not conform with current zoning standards.

Strengthened Oversight

While existing law already requires local agencies to submit their ADU ordinances to the state’s Department of Housing and Community Development (HCD) for review and comments, AB 68 added the ability for HCD to submit findings to local agencies if an ADU ordinance is not in compliance with state ADU laws, and to notify the Attorney General if a local agency chooses not to amend their ADU ordinance to meet state requirements.

As California continues to wrestle with an affordable housing shortage, further changes to ADU regulation may emerge. Property owners and developers, for now, have greater clarity and have scored some pro-development victories. 

Steven Vettel and Charles “CJ” Higley are real estate and land use partners in Farella Bran + Martel’s San Francisco office.

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