In order to encourage the construction and use of ADUs and JADUs, AB 670 adds new Civil Code section 4751 to the Davis-Stirling Act. Section 4751(a) provides that "any provision of a governing document, that either effectively prohibits or unreasonably restricts the construction or use of an [ADU] or [JADU] on a lot zoned for single-family residential use that meets the requirements of Section 65852.2 or 65852.22 of the Government Code, is void and unenforceable."
AB 670 only applies to common interest developments subject to the Davis-Stirling Act. In addition, the Legislature's use of "on a lot zoned for single-family residential use" means that new Section 4751 will only apply to planned developments (PDs), as the separate interests of other types of CIDs are not "lots."
Unfortunately, the covenants, conditions, and restrictions (CC&Rs) of many PDs contain boilerplate provisions which prohibit the construction or use of ADUs and JADUs. These provisions typically take the form of restrictions on the construction of additional structures on the lot, the conversion of garages or storage areas into living spaces, or the leasing of less than the entire lot. Other provisions may control such use as well, such as short-term lease and parking restrictions.
Fortunately, as with solar energy systems and electric vehicle charging stations, Section 4751(b) permits associations to impose “reasonable restrictions” on ADU and JADU construction (though possibly not use). Restrictions are considered reasonable if they “do not unreasonably increase the cost to construct, effectively prohibit the construction of, or extinguish the ability to otherwise construct, an [ADU] or [JADU] consistent with the provisions of Section 65852.2 or 65852.22 of the Government Code.” § 4751(b).
If faced with an owner application to construct an ADU or JADU, PD boards should work with counsel to determine whether their CC&Rs or other governing documents contain restrictions on ADU or JADU construction or use. If present, counsel should advise as to whether the board may "reasonably" enforce such restrictions. If not, an amendment or update may be required. In addition, PD boards and architectural committees should ensure that any association conditions placed on construction or use are reasonable, as defined by law. Express ADU and JADU construction and use operating rules may prove helpful as well.