Flurry of new laws will hit California on Jan. 1, 2003

Property owners who want to build so-called "granny flats" will have an easier time constructing the backyard and above-garage units, no matter what the neighbors think, if they meet all of the local government standards.

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Multiple Granny Flat Articles Below...

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Restrictions loosened on second units
by C.A. Gilman
© 2002 The Ojai Valley News

Gov. Gray Davis recently signed a bill that mandates that second units (aka granny flats) be classified ministerial rather than discretionary as of July 1, 2003. This law, which goes into effect on Jan. 1, also requires that local governments provide developers of low-income housing with incentives for their projects as long as they meet specified requirements.

Ojai now treats all second units as discretionary in order to limit their development. The new law takes that choice away from local government. City Manager Dan Singer said, "This takes away local discretion for approving or not approving granny flats which might even impact public notification and offering a public hearing so that neighbors can be involved."

According to Matthew Sewell, the legislation on affordable housing means that a low-income housing project that meets state guidelines must be allowed by the local government regardless of local policies. It also provides that developers can sue the local government if state-qualified projects are denied due to local considerations.

Bruce Smith, who manages the General Plan section for the city of Ventura's Planning Department, concurs with Sewall. Smith said, "The intent of the legislation is to require local government to be more responsible in offering affordable housing. However, the conundrum is that the law doesn't override local land use legislation. It is also very expensive to sue a city, and developers fear tainting their good relationships with city councils and planning commissions."

Ivor Benci-Woodard, president of the Citizens to Preserve the Ojai, said, "If the state requirements for affordable housing are such that they don't allow for environmental review of the community, then there will be collisions with the California Environmental Quality Act."

The complexity is further increased because of the traffic problems that hinge on what is done on Highway 33, which is a state road. The county general plan requires that Highway 33 be widened to four lanes before any new projects are built. Smith said, "Right now no housing development is allowed except for single family dwellings on pre-existing lots because of the level of service on highway 33. The new legislation will mean that second dwelling units will not be affected by an environmental impact report. The county has also asked us to look at exempting affordable housing from the current LOS to enable affordable housing to be built. Right now you have a catch 22: on the one hand, you have the need for affordable housing, and not building housing triples the occupancy of many homes, which increases traffic, etc."

As for how this will impact Ojai, Singer said, " It's not clear yet which of these legislations will affect us. We will be spending more time with counsel before it goes into effect on Jan. 1."

Appeal Court Strikes Down City's Granny Flat Law

By Jorge Casuso
Copyright ©2000 surfsantamonica.com.

In a unanimous ruling, the California Court of Appeal last week shot down a Santa Monica ordinance that restricts who can live in second units -- or "granny flats" -- in single family residential zones, saying it violates both privacy and equal protection rights.

The ordinance -- which restricts occupancy to dependents and caretakers -- was approved by the City Council at the urging of residents, despite legal warnings from attorneys as well as City staff.

"The right to privacy includes the right to be left alone in our homes," Judge J. Bolland wrote in an unpublished decision. "Unless we are to say that a second unit is not a part of one's home, personal decisions about who may live in a second unit are no less entitled to privacy protections than decisions about who may live together in the main residence."

"The Court of Appeal has sent a loud message," said attorney James Isaacs, who represented the plaintiffs. "Santa Monica has no business regulating the types of people allowed to live in various types of housing. With very limited exceptions, people are free to choose who they live with."

According to City Attorney Marsha Moutrie, the council is now faced with three options:

"This is an opportunity to revisit the policy," Moutrie said. "Whether that exemption was a privacy violation or not, that issue was noted when the council adopted the law. They knew there was some risk, but they thought it was better to give homeowners an option than an outright ban."

When the law was first passed in 1996, as well as when a similar law was passed to replace it in 1998 and extended with a 5 to 2 vote the following year, the council heard from dozens of homeowners -- most of them from North of Montana -- who opposed second units.

They argued that the units -- which provide complete independent living facilities for one or more persons -- would result in congestion, air pollution, noise, traffic and on-street parking.

In the written decision, Judge Bolland questions both the City's failure to heed the legal warnings and its decision to base policy on popular sentiment.

"It is questionable whether the City's findings, based not on population or traffic or any other kind of studies, but solely on opinions expressed by residents of R-1 districts, could constitute the required statutory findings," Judge Bolland wrote.

Isaacs agrees: "Xenophobic fears that a comparatively modest number of second units will destroy our City are simply unwarranted," Isaacs said after the ruling. "Strategies to placate political constituencies need to be modified and put in the context of what has happened on a Constitutional level."

In the lawsuit, brought by the Coalition Advocating Legal Housing Options and former planning commissioner Lou Moench, the plaintiffs challenged the constitutionality of the zoning ordinance, arguing that the restrictions violated the right of privacy and the equal protection clause in the state Constitution.

The City argued that the restriction helped preserve the "character and integrity of single family neighborhoods" and protected against an undue concentration of people and traffic. The court disagreed.

"It is difficult to see," the court wrote, "how the status of the occupier of a second unit -- an unrelated renter versus a dependent or caregiver who is allowed to pay rent -- bears any relationship to either one."

In the ruling, the court noted that the city's fears of an "undue concentration" of second units were unfounded and quoted the City's own Housing Element Update for 1998-2003. The document, which sets the City's housing policy for five years, noted that even if the second-unit ordinance were eased, "it is unlikely that second units would have a significant impact on the new housing stock during the planning period."

The court also disagreed with the City's argument that, as a charter city, it is not required to comply with a 1982 state statute on second units which encourages the creation of affordable housing. The statute requires local agencies to permit second units that meet state mandated standards unless it either bans them in single family or multi-family zones or passes its own ordinance allowing units with standards stricter than the state's.

The statute was amended in 1994, after the state found that local governments were either "embracing second units as a source of affordable housing, or by discouraging their creation through complicated and expensive application procedures or other means," according to last week's written decision.

The amended state law declared the Legislature's intent that "any second-unit ordinances adopted by local agencies have the effect of providing for second units.... and are not so arbitrary, excessive or burdensome so as to unreasonably restrict the ability of homeowners to create second units in zones in which they are authorized by local ordinance."

When the city passed its first ordinance in 1996, in response to an application for a second unit, staff said that it did not believe the findings for an all-out ban could be made. It also included a copy of a 1990 state housing document "indicating that a local ordinance limiting occupancy to persons related to the owner would be susceptible to legal challenge," according to the Appeal Court decision.

The council first accepted the staff recommendation and directed them to prepare an ordinance regulating second units. But after hearing testimony from some two dozen members of the public opposing second units, the council rejected staff recommendation.

Instead, the council directed staff to prepare an ordinance that would ban rental units in single family neighborhoods with the appropriate findings. The council also asked staff whether it should include limited hardship exemptions.

On October 8, the council adopted an ordinance that banned second units unless they were occupied by a relative or caretaker if the homeowner could demonstrate substantial hardship. The ordinance was extended 18 months in November and a new interim ordinance was passed with a 4 to 3 vote in June 1998 dropping the need to show hardship.

After the Planning Commission recommended that the council revisit the interim ordinance before it expired and control the units by regulating density and concentration, the council was presented with two options: enact the existing standards permanently, or extend the interim ordinance and explore the Planning Commission recommendations. Again, heeding the cry of residents, the council adopted the permanent ordinance by a 5 to 2 vote.

(Voting for the ordinance were Councilmembers Kevin McKeown, Ken Genser, Robert Holbrook, Richard Bloom and Pam O'Connor. Councilmembers Michael Feinstein and Paul Rosenstein cast the dissenting votes.)

The legal warnings the council chose not to follow were nothing new.

In 1988, the court notes that then City Attorney Robert Myers gave the council similar advice, saying that the findings for a ban on second units were "legally indefensible" and that such an ordinance was unlawful.

After reading last week's ruling, Myers questioned the council's decision to approve the restrictions.

"The City's multi-decades fight against granny flats is inconsistent with a progressive commitment to affordable housing," Myers told The Lookout.

Instead of Scattering, Families
Are Living in the Same Town
Wall Street Journal
By June Fletcher, Staff Reporter of The Wall Street Journal

December 20, 2002

Ank Miranda has always thought of his family as close-knit, but lately, it's gotten a whole lot closer: He just helped his daughter buy a house near his own California home -- and then bought his mother-in-law one just down the street. It's got an apartment over the garage, so there'll be room for Mr. Miranda and his wife, just in case they decide to move in, too....

He's not alone. In a little-noticed but steadily growing trend, the American extended family is making a comeback. Increasingly, the people next store may well be your parents -- or kids. And the in-laws? They're moving into a casita in the backyard. Indeed, according to the most recent Census, the number of households with three generations under one roof has doubled in the past 20 years, while the number of young adults moving back home is up 6%. And developers aren't far behind the curve; they're building communities with playgrounds and bingo parlors, or going upscale with the old "granny flats," perfect for Mom and Dad to move into....

All the togetherness represents a major change in American family life. For almost a century and a half, the pattern has been for generations to move farther apart -- often for job-related reasons. (In the 1850s, one in five families contained three generations under one roof; now, only one in 25 live that way.)

During past economic downturns, families also pulled together, says CLAUDE FISCHER, A SOCIOLOGIST AT THE UNIVERSITY OF CALIFORNIA AT BERKELEY. The difference this time: It's baby boomers in their 40s and 50s doing the moving -- some to help take care of their parents, others looking ahead to retirement and moving from high-cost urban areas to cheaper ones. There's even been a kind of "rural rebound," with nonmetropolitan areas growing four times as fast in the last decades as they did during the '80s -- often because people are moving back to their hometowns....

Oswego 'granny flats'