AB-68 Explained

It’s official, AB-68 was officially adopted as of January 1st, 2020 every city must have a State approved ordinance in place!

First, if you haven’t heard of AB-68, it’s a radical, and revolutionary piece of legislation approved back in October 2019, thanks to Assembly Member Ting! It requires EVERY CITY in California to submit an ordinance allowing accessory dwelling units (ADU’s) in both single family and multi-family zones. Allowing 3 units for all single-family zones and up to 25% more units in multi-family zones.

Ever since it was signed by Governor Newsom into law in October 2019, I’ve been getting calls from people anxious to move forward with the increased density this law affords their projects, but in reality, many cities, including San Francisco, are still working to implement some of the requirements. (This delay is in express opposition to the deadlines set forth in the legislation. All cities were supposed to have their ordinances approved an in place by spring of 2020)

We’ve read (and re-read) this piece of legislation so many times we’ve lost count and we STILL have to go back and read specific sections to be sure we’ve got it right. It’s a complex piece of writing, but it blows the doors off density in every city in California.

So - we thought it would be helpful to boil this heavy text down into understandable language with a few visual aids to help. This article is ONLY based on the California State law. It’s not specific to your local jurisdiction, so please be sure to confirm these details match your local city codes.

What is in AB-68?

Simply put, tripling the density of every property in the state. On its face, this legislation is another brilliant expansion of the accessory dwelling unit (ADU) program. This program is every lawmakers hidden density jewel. It doesn’t rile the neighbors, they’ve made it almost impossible to contest these projects, and often, it doesn’t even require building new buildings. This latest expansion, is creatively written to prohibit cities from imposing requirements that would not permit ADU’s. For instance, hostile cities can’t set an ordinance that prohibits ADU’s on lots less than 5,000 sf in size; especially if ALL the lots in that town/city are less than 5,000 sf in size. Somebody really did their homework in drafting this law. It covers almost all the loopholes.

Not only does it require cities to permit ADU’s, it also reduces the permit review timelines and eliminates hearings, discretionary review, variances, or special use permits. Permits for these projects must be approved within 60 days from receipt of a completed application. (Loophole alert: If you miss something in your drawings/application, the city can say that your application isn’t “complete” and reset the clock)

Here’s what’s permitted in residential zones:

Single family zoned lots can install a total of (3) dwelling units including:

1. The primary dwelling plus

2. 1 ADU, and

3. 1 Junior ADU.

• Each unit must have a separate entrance.

• The units must be within the main building or in a detached structure. Code compliant additions are also permitted.

  • If part of the main building the total floor area of an ADU cannot exceed 50% of the area of the primary dwelling.

  • If the ADU is in a detached structure, a maximum square footage of 1,200 sf is permitted.

Construction of new rear yard accessory structures is permitted.

1. New rear yard structures can be 800 sf or larger, in a 16’ tall structure, with 4’ side and rear yard setbacks.(It will be interesting to see how SF handles this one, after all, the rear yard “open space” is sacrosanct!)

2. An addition of up to 150 sf is permitted only if providing required ingress/egress.

3. Non-conforming rear yard structures may be completely demolished and reconstructed, even if they do not meet setback requirements.

4. The J-ADU may also be located in this accessory structure

5. A side yard open to the sky cannot be required; i.e. a covered exit corridor or passageway must be permitted.

What the heck is a Junior ADU?

Effectively it’s a unit without actually being a unit! Picture an area in your house that can be completely separated/closed off from your home with its own entry, kitchenette, closet, and private or shared bathroom attached to the main house. The Junior ADU is a “unit” permitted in single family zones and includes all the following:

1. A maximum size of 500 sf.

2. It must be within the walls of the single family residence (existing or new construction)

   1. It can also be in a separate accessory structure.

3. A separate entrance is required.

4. A kitchen must be provided including cooking facilities, appliances, and a “reasonably sized” food prep area.

5. It may share a bathroom with the primary dwelling, but is not required to.

6. For the purposes of the Building/Fire Code, this is NOT considered a third unit and cannot trigger a change of use to an R-2 occupancy. (Seriously - how did they pull that one off?)

   1. They do allow the local jurisdiction to create fire codes specific to these cases, but the code changes must apply to ALL single family residences regardless of whether it has a J-ADU or not.

7. The City cannot require parking for this “unit.”

8. The unit cannot be sold separately from the primary dwelling. (No condo-ing these units)

9. The primary dwelling must be owner-occupied unless the owner is a government agency, land trust, or housing organization.

Here’s what’s permitted in multi-family zones/buildings:

1. Existing non-living spaces can be converted into new accessory dwelling units. This includes storage rooms, garages, boiler rooms, passageways, attics, basements, etc.

2. An increase in total unit count of up to 25% is permitted within the existing building. (i.e. if your building has 10 units, you get 3 more)
   

   1. Note: San Francisco is less restrictive and allows unlimited new units in existing buildings with 5+ units in them.

3. If there are accessory structures on the site, 2 additional ADU’s are permitted in those structures.

4. These units must comply with all state building codes.

Limits on Cities:

Cities can no longer restrict these units through other zoning laws. They must identify areas in their jurisdiction for ADU’s to be constructed.

1. They cannot set a minimum lot size.

2. They must allow the conversion of existing accessory structures even if they do not comply with setbacks or height restrictions.

   1. They must also allow these structures to be fully reconstructed with the same size and setbacks, even if the structure is fully demolished for installation of the new unit(s).

3. If a garage/carport structure is demolished for installation of a new unit, the City cannot require the parking spaces be replaced.

4. Cities must remove any zoning codes that would require variances, discretionary review, hearings, or other lengthy processes for ADU projects. They are mandated to review and approve or deny a complete application within 60 days.

5. ADU’s shall not be deemed to be over density regardless of zoning.

6. Rear yard structures of 800 sf+, 16’ tall, with 4’ side and rear yard setbacks cannot be counted against lot coverage, floor area ratio, open space, or minimum lot size.

7. The Certificate of Occupancy for the ADU cannot be issued before the CO for the primary dwelling.

8. Cities must create a definition and ordinance for Junior ADU’s as well.

9. They must allow studio apartments and cannot set a minimum square footage. (This is for cities that require a minimum of 2-bedroom units, making it impossible to build on smaller lots)

   1. For studio and 1-bedroom apartments, they must allow units up to 850 sf.

   2. For larger units they must allow up to 1,000 sf.

10. They cannot require parking if the ADU is:

    1. Within 1/2 mile of public transit

    2. Located within an architecturally and historically significant historic district

    3. Part of the primary dwelling or an accessory structure

    4. In districts with street parking permits when the ADU does not qualify for a permit (for instance, in SF if there is a 2-hour parking zone on the street and only 1 permit is permitted for each lot, the ADU wouldn’t qualify to apply for a street permit)

    5. If there is a car share within one block

11. They cannot require correction of nonconforming zoning conditions as a condition for approval of the ADU. (Excellent catch of a potential loophole!)

12. They cannot require sprinklers if sprinklers are not required for the primary residence.

13. For ADU’s within the existing building they cannot require:

    1. Separate utility meters, including water meters.

    2. Connection fees and capacity charges; except in the cases of new construction

    3. Utility meters and capacity charges can be required in detached accessory dwelling units and in multifamily dwelling structures per local requirements.

14. Cities can choose to be less-restrictive with their ADU program. (We hope they will be!)

When CAN Cities restrict installation of ADU’s?:

Cities may identify areas within their jurisdiction that are not appropriate for ADU’s. For instance, if there are inadequate water and sewer services to the site. They can also identify areas that would have a significant impact on traffic flow and public safety. (we smell a loophole here)

1. Cities can require up to 1 parking space per unit or per bedroom (whichever is less) but they must also permit tandem parking on a driveway.

2. They can set minimum and maximum unit sizes for ADU’s. (with limits)

3. They can require setbacks to comply with fire code.

4. They can require that the owner occupy the primary dwelling or the ADU.

5. They must require that the rental of the ADU be for a term longer than 30 days.

6. They can require onsite water treatment based on a percolation test.

Whew! Did you make it all the way to the end of this article? If not, I hope you were able to at least print it out and use it as a cheat sheet. We’ll all be using these new standards soon!

As design professionals, we can add SO much value, and provide much higher quality service to our clients if we stay informed about these radical legislative changes. Not only that, by finding out before they’re approved, we have the opportunity to affect change BEFORE the vote.

We’re all busy. We don’t have time to read hundreds of pages of legislation each week, which is why Property Atlas is poised to do all the work for you. We have amazing content on our LinkedIN. Please follow us.

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Image credit and copyright by Housable and Remoca General Contractors