Santosh Kumar and his wife Shilpa were looking for home. Like many families in the Bay area, they were faced with the almost impossible challenge of finding a home that was both affordable and large enough for themselves and their parents. They found a modest single-family home. Because of Bay Area prices it stretched their budget to the limit. This home had one key feature that convinced Santosh and Shilpa to go for it despite the cost: the backyard had a small apartment above the garage that, with a little work, could be used as a home for their parents. They checked property records to confirm that the rear building was legally constructed, and found records of the backyard apartment dating back to 1967. They even went the the city’s planning department to ask about the building. The planner they talked to told them that keeping it shouldn’t be a problem.

What happened after the Kumars bought their new home is a long and frustrating story, but one that many homeowners in California share. While the Kumars were renovating the backyard apartment one of their neighbors complained. This prompted the city to take a closer look at the structure, and discover that it infringed on the side yard setback requirement by a little over a foot. The city revoked the building permits for the renovation work and put the Kumars into a limbo status that has lasted over a year.

The details of the issue have proved difficult for the Kumars and the city’s own staff to understand. The apartment over the garage  would be legal if it had been built before the current zoning standards were applied, because it would be grandfathered under the prior zoning rules. Although records showed that the apartment existed dating back to at least 1967, the city was uncertain when current zoning was first applied, because the property was on unincorporated county land when the apartment was originally constructed. For that same reason, records of the original building permits did not exist either (the records from 1967 were from a tax assessment).

In the absence of evidence about when the apartment was first built, the city staff has decided that without the original building permit showing the rear structure as a residential apartment, they could not approve of any renovations, and the undocumented structure would have to be demolished and rebuilt a few feet over to comply with setback requirements.

The Kumars are still waiting to resolve their issue and move on. They had hoped to appeal the city staff’s determination to the planning commission or city council, but the city has opted to place their permit on hold rather than denying it, preventing any appeal. The Kumars are left with no good options, and are at a loss in trying to decide what to do with their home.

They are not alone in facing this issue. Los Angeles documented over 2500 unpermitted units, and required over 1700 of these to be demolished before adopting an amnesty program in 2017. Statewide, the number of unpermitted units could be in the hundreds of thousands. There are countless more that, like the Kumars’ property, lack records to establish their legality.  Most of these property owners are one neighbor complaint away from ending up in a regulatory limbo similar to the Kumars. Even worse, many of these second homes have tenants in them already, meaning that a complaint could result in a landowner being forced to evict their tenant.

Given the potential consequences of enforcing our zoning rules and losing all of these homes, it is worth questioning why we make them illegal in the first place. In many examples, the reasons are trivial. The Kumars’ building is about a foot too close to the property line; still entirely on their own lot and well within health and safety guidelines. In other cases, the homeowner’s lot doesn’t meet the city’s minimum lot size for an Accessory Dwelling Unit (ADU), or there isn’t enough space for the required parking.

Even where the city’s zoning regulations would allow for a second unit at the same address , expensive impact fees can make legalizing the existing accessory home a costly proposition, sometimes more than $50,000. Even more commonly, legalizing an existing second home would be impossible because as a ‘new’ unit, the building would be subject to new construction building and energy codes. Bringing older structures into compliance is cost-prohibitive for most families, and few public resources exist to support them in doing so.

The stance taken by the Mountain View planning department, and all the challenges outlined above, reflect decades of policy in California that make abundant housing the very last priority. You would be hard pressed these days to find anyone who outright opposes ADUs, yet when faced with a choice of allowing an ADU or preserving a full five foot setback, many Californians still insist that their setback is more important than a place for someone to live.

What can we do to fix this?

The existing state ADU law attempts to tackle this issue by allowing for ministerial approval of conversions of existing structures, notwithstanding local zoning requirements (Gov. Code Section 65852.2(e)). This provision has proved unhelpful to many homeowners, however, because it does nothing to limit impact fees targeted at heavily capitalized developers or the imposition of new building code requirements, and it has been interpreted to only apply to legally permitted structures, unhelpful to the many undocumented homes in our state.

Making three main changes to local standards for legalizing existing units could solve this issue entirely, and prevent repeats of of the Kumars story and prevent the potential eviction of tenants living in existing unpermitted units. We could establish a local or even statewide amnesty program for undocumented yet habitable–sometimes even occupied–ADUs. This legalization of units constructed in prior years would:

  • Limit needless zoning requirements for ADUs: Cities should not be able to impose minimum lot size requirements, or excessive setback, floor area, lot coverage, distance between buildings, design review, or any number of other requirements that would prevent the legalization of an existing second unit. As a preliminary step, planning departments can stop the senseless practice of requiring that completely unrelated zoning violations be corrected before approving ADU permits on a property.
  • Exempt ADUs from impact fees: Legalizations of existing second units should be exempt from impact fees, regardless of how they were constructed.
  • Exempt legalizations from new construction building and energy code: Legalizations of existing second units should be subject to building code requirements only for when they were originally constructed.

We need policy that places the right to housing first, and right to setbacks a distant second. Some of these changes can and should be made at the state level, but cities themselves are free to introduce programs themselves. Some cities have taken this step, but they are the exception. Often these local programs do not go far enough, failing to deal with impact fees or building code issues. In the vast majority of the state we are still living with rules and practices that put housing last on the priority list and turn quality, sound housing into storage units with kitchens. Building new housing can take years, but ADU amnesty programs have potential to boost our state’s supply overnight with the stroke of a pen. This must change.

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