The Planning and Zoning Law authorizes a local agency to provide by ordinance for the creation of accessory dwelling units in single-family and multifamily residential zones. That law sets forth the standards that the ordinance is required to impose, including, but not limited to, parking, height, setback, lot coverage, landscape, architectural review, maximum size of a unit, and standards that prevent adverse impacts on any real property that is listed in the California Register of Historic Places. Existing law requires the local agency to ministerially approve an application for a building permit to create within a single-family zone one accessory dwelling unit per lot if the unit is contained within the existing space of a single-family residence or accessory structure. In this instance, existing law authorizes a city to require owner-occupancy for either the primary residence or the accessory dwelling unit.

The Planning and Zoning Law also authorizes a local agency to provide by ordinance for the creation of junior accessory dwelling units in single-family residential zones. Existing law requires this ordinance to require owner-occupancy in the single family residence in which the junior accessory dwelling unit will be permitted, except in instances when the owner is another governmental agency, land trust, or housing organization.

This bill would require, when a local agency or ordinance requires owner-occupancy pursuant to the above-described provisions, the lot that contains the accessory dwelling unit or the single family residence in which the junior accessory dwelling unit is located to be deemed to be owner-occupied if the lot or single family residence is owned by a trust in which at least one beneficiary of the trust is a person with a disability and that person occupies the primary residence, accessory dwelling unit, or any part of the single-family residence.

Existing law declares that a public entity is not liable for an injury caused by the issuance, denial, suspension, or revocation of, or by the failure or refusal to issue, deny, suspend, or revoke, any permit, license, certificate, approval, order, or similar authorization where the public entity or an employee thereof is authorized by enactment to determine whether that authorization should be issued, denied, suspended, or revoked.

The Planning and Zoning Law authorizes a local agency to provide by ordinance for the creation of accessory dwelling units in single-family and multifamily residential zones, as specified. zones. That law requires sets forth the standards that the ordinance to, among other things, impose standards on accessory dwelling units that include, but are is required to impose, including, but not limited to, parking, height, setback, lot coverage, landscape, architectural review, maximum size of a unit, and standards that prevent adverse impacts on any real property that is listed in the California Register of Historic Places. Existing law requires the local agency to ministerially approve an application for a building permit to create within a single-family zone one accessory dwelling unit per lot if the unit is contained within the existing space of a single-family residence or accessory structure. In this instance, existing law authorizes a city to require owner-occupancy for either the primary residence or the accessory dwelling unit.

This bill would make legislative findings and declarations as to the necessity of a special statute for the City of Los Angeles.

The Planning and Zoning Law authorizes a local agency to provide by ordinance for the creation of accessory dwelling units in single-family and multifamily residential zones, as specified. That law requires the ordinance to, among other things, impose standards on accessory dwelling units that include, but are not limited to, parking, height, setback, lot coverage, landscape, architectural review, maximum size of a unit, and standards that prevent adverse impacts on any real property that is listed in the California Register of Historic Places.

This bill would provide that a public entity, including, but not limited to, a city, county, or city and county; public officer, including, but not limited to, a member of the legislative body of a city, county, or city and county; or an employee of a public entity, is not liable for any personal injury, death, property damage, or inverse condemnation, the City of Los Angeles is not liable for an injury or for damage that has arisen from or is related to the use of an accessory dwelling unit and that is proximately caused by any utility system, including, but not limited to, a water system or electrical system equipment, that the public entity city designed, owns, operates, or maintains if the legislative body of a local agency city has permitted the water, electrical utility system equipment, or equipment and the accessory dwelling unit, unit or structure being converted to an accessory dwelling unit to remain in the same location as it existed prior to January 1, 2018. The bill would limit the application of this provision to specified accessory dwelling units structures constructed prior to January 1, 2018 2018, that, at the time of the personal injury, death, property damage, or inverse condemnation, injury or damage, the owner was attempting to bring or had brought into compliance with applicable local agency rules, regulations, or ordinances.

The Planning and Zoning Law authorizes a local agency to provide by ordinance for the creation of accessory dwelling units in single-family and multifamily residential zones, as specified. That law requires the ordinance to, among other things, impose standards on accessory dwelling units that include, but are not limited to, parking, height, setback, lot coverage, landscape, architectural review, maximum size of a unit, and standards that prevent adverse impacts on any real property that is listed in the California Register of Historic Places.

This bill would provide that a public entity, including, but not limited to, a city, county, or city and county; public officer, including, but not limited to, a member of the legislative body of a city, county, or city and county; or an employee of a public entity, is not liable for any personal injury, death, property damage, or inverse condemnation, that has arisen from or is related to the use of an accessory dwelling unit and that is proximately caused by any utility system, including, but not limited to, a water system or electrical system equipment, that the public entity owns, operates, or maintains if the legislative body of a local agency has permitted the water, electrical system equipment, or accessory dwelling unit, to remain in the same location as it existed prior to January 1, 2018. The bill would limit the application of this provision to specified accessory dwelling units constructed prior to January 1, 2018 that, at the time of the personal injury, death, property damage, or inverse condemnation, the owner was attempting to bring into compliance with applicable local agency rules, regulations, or ordinances.

 THIRD READING  

Bill No: AB 2071

Author:

:

Vote:

SENATE JUDICIARY COMMITTEE: 5-0, 7/3/18

AYES: Jackson, Moorlach, Anderson, Monning, Stern

NO VOTE RECORDED: Hertzberg, Wieckowski

ASSEMBLY FLOOR: 69-0, 5/21/18 - See last page for vote

SUBJECT: Accessory dwelling units: owner occupancy

SOURCE: Author

DIGEST: This bill modifies what is deemed “owner-occupied” for purposes of permitting the creation of an accessory dwelling unit (ADU). Specifically, this bill includes as “owner-occupied” situations in which the occupant of the primary residence or the associated ADU is a disabled individual for whom the overall property is owned in trust.

ANALYSIS:

Existing law:

1. Requires a standard process to approve an application for a permit to create ADUs within a single-family or multi-family residential zone following certain criteria, including that the ADU:
   1. Is constructed on a lot which includes an existing or proposed single-family residence;
   2. Has independent exterior access from the existing residence, and the side and rear setbacks are sufficient for fire safety;
   3. Would not exceed the allowable density for the lot;
   4. Shall be permitted to not have fire sprinklers in cases where fire sprinklers are not required for the primary residence;
   5. Does not require a setback if it is an existing garage that is converted to an ADU or a portion of an ADU;
   6. Is not intended for sale separate from the primary residence and may be rented separate from the primary residence;
   7. Has floorspace which does not exceed 50 percent of the proposed or existing primary dwelling living area or 1,200 square feet; and
   8. Provides complete independent living facilities for one or more persons including permanent provisions for living, sleeping, eating, cooking, and sanitation on the same parcel as the single-family dwelling is situated. (Gov. Code Sec. 65852.2.)
2. Makes legislative findings and declarations regarding the importance of ADUs because they:
   1. Provide housing for family members, students, the elderly, in-home health care providers, the disabled, and others, at below market prices within existing neighborhoods; and
   2. Offer lower cost housing to meet the needs of existing and future residents within existing neighborhoods, while respecting architectural character. (Gov. Code Sec. 65852.150.) Provides that cities may make owner occupancy of either the primary residence or the associated ADU a precondition for obtaining a permit for the creation of an ADU in an area zoned to allow single-family or multifamily use. (Gov. Code Sec. 65852.2(e).)
3. Provides that local agencies must make owner occupancy of either the primary residence or the associated ADU a precondition for obtaining a permit for the creation of a junior ADU in an area zoned for single-family residential use. (Gov. Code Sec. 65852.22(a)(2).)

This bill deems a property to be “owner-occupied” for purposes of a local ADU permitting ordinance, if either the primary residence or the ADU is occupied by a disabled person who is the beneficiary of a trust and that trust is the owner of the lot on which the primary residence and ADU are located.

Background

Under existing laws, local ordinances governing permitting of ADUs may – and in some cases must – require the owner of the property in question to reside in either the primary residence or the associated ADU. The policy purpose behind such a requirement is to try to ensure that the property owners have a personal stake in the overall condition of the property and the behavior of the occupants, thus reducing the possibility that the addition of an ADU will lead to deterioration in the quality of life for the surrounding neighbors.

It is sometimes the case that a disabled person occupies a residence, but is not technically the owner because the property is held in trust for that disabled person. Such arrangements allow the disabled individual to maintain eligibility for certain public benefits. These trusts are frequently known as “special needs trusts” or “supplemental trusts.” This bill deems a primary residence or ADU to be “owner-occupied” for the purposes of a local ordinance governing the permitting of ADUs, if the owner of the overall lot is a special needs or supplemental trust and the beneficiary of that trust lives in either the primary residence or the ADU.

FISCAL EFFECT: Appropriation: Fiscal Com.: Local:

SUPPORT: (Verified 8/7/18)

City of Los Angeles

Habitat for Humanity

OPPOSITION: (Verified 8/7/18)

None received

ARGUMENTS IN SUPPORT: According to the author:

I authored AB 2299 which eased and streamlined a number of requirements for the building of ADUs. Since the passage of that bill, we have seen an explosion of permits for ADUs across the state. Some cities are still in the dark on the new rules and we are working on that, and others continue to drag their feet, but we are making a dent in our housing needs with these relatively small changes that didn’t cost the state a single dime. AB 2299 has led to the construction of more than 4,000 ADUs across the state.

ASSEMBLY FLOOR: 69-0, 5/21/18

AYES: Acosta, Aguiar-Curry, Travis Allen, Arambula, Baker, Berman, Bloom, Bonta, Brough, Burke, Caballero, Calderon, Carrillo, Cervantes, Chau, Chávez, Chen, Chiu, Chu, Cooley, Cooper, Cunningham, Dahle, Daly, Flora, Fong, Frazier, Friedman, Gallagher, Gipson, Gloria, Gonzalez Fletcher, Grayson, Harper, Holden, Irwin, Jones-Sawyer, Kalra, Kamlager-Dove, Kiley, Lackey, Levine, Limón, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Mullin, Muratsuchi, Nazarian, Patterson, Quirk, Quirk-Silva, Reyes, Rodriguez, Rubio, Salas, Santiago, Steinorth, Mark Stone, Thurmond, Ting, Voepel, Weber, Wood, Rendon

NO VOTE RECORDED: Bigelow, Choi, Eggman, Cristina Garcia, Eduardo Garcia, Gray, Obernolte, O'Donnell, Waldron

Prepared by:

8/7/18 17:11:37

**** END ****

SENATE JUDICIARY COMMITTEE

Senator Hannah-Beth Jackson, Chair

2017-2018 Regular Session

Bill No: AB 2071 (Author:Bloom)

Version: June 25, 2018

Hearing Date: July 3, 2018

Fiscal: No

Urgency: No

Consultant: TSG

SUBJECT

Government immunity: accessory dwelling units: improvements: permits

DESCRIPTION

This bill would make two changes related to the creation of an accessory dwelling unit (ADU) in California. The first would provide immunity to the City of Los Angeles for any injury or damage that arises from, or is related to, the use of an accessory dwelling unit that has been converted from an existing structure, when that injury or damage was caused by any utility system permitted by the City of Los Angeles, including utility systems designed, owned, operated, or maintained by the City of Los Angeles. The second change, applicable statewide, would very narrowly expand what is deemed “owner-occupied” for purposes of ADU permitting requirements so as to account for situations in which the occupant of the primary residence or the associated ADU is a disabled individual for whom the overall property is owned in trust.

BACKGROUND

California is confronting a major housing crisis. The cost of housing has been increasing dramatically to the point that many Californians are spending more than half of their income on housing alone.^[1]

One major factor behind this crisis is the lack of affordable housing units.^[2] One common response has been an effort to incentivize and facilitate the conversion of outbuildings – things like detached garages, studios, or workshops – into “accessory dwelling units” (ADUs), also known as second units, accessory apartments, in-law units, or granny flats. State law extols the virtues of ADUs (Gov. Code Sec. 65852.150) and sets forth a standard process that local jurisdictions must follow for permitting ADU creation. (Gov. Code Sec. 65852.2.)

The City of Los Angeles is among those jurisdictions promoting ADUs. In the case of approximately 400-600 applications for permits to convert existing outbuildings into ADUs, however, the City of Los Angeles has run into a problem. The structures in question were built within utility easements. In particular, it seems, many of these structures are garages that were built underneath power lines. As long as the structures were not intended for habitation, there was no legal problem with this arrangement. Now that the owners of these structures want to convert them into ADUs where people would reside, however, the City of Los Angeles has concerns about issuing the permits that would make such a conversion legal.

The City of Los Angeles’ concern, apparently, is its potential liability. If one of the utility systems running over, under, or next to the ADU should cause injury or damage to the ADU or the people living in it, the City of Los Angeles could be on the hook. Given that, the City of Los Angeles is reluctant to issue permits for these ADUs. As a result, property owners in the City of Los Angeles who want to convert outbuildings located on utility easements into ADUs cannot currently obtain a permit to do that. Those property owners who already went ahead and converted existing outbuildings located on utility easements into ADUs cannot obtain the permits that would make that use legal.

This bill would provide immunity to the City of Los Angeles for any injury or damage that arises from or is related to the use of an accessory dwelling unit that has been converted from an existing structure, when that injury or damage was caused by any utility system permitted by the City of Los Angeles. Such immunity would, according to the author of the bill, alleviate the City of Los Angeles’ concerns over liability for ADUs conversions located on utility easement. As a result, the City of Los Angeles would be willing to approve permits for the approximately 400-600 existing or proposed ADUs that are located in utility easements.

CHANGES TO EXISTING LAW

1. Existing law requires a standard process to approve an application for a permit to create accessory dwelling units (ADUs) within a single-family or multi-family residential zone following certain criteria, including that the ADU:

• is constructed on a lot which includes an existing or proposed single-family residence;
• has independent exterior access from the existing residence, and the side and rear setbacks are sufficient for fire safety;
• would not exceed the allowable density for the lot;
• shall be permitted to not have fire sprinklers in cases where fire sprinklers are not required for the primary residence;
• does not require a setback if it is an existing garage that is converted to an ADU or a portion of an ADU;
• is not intended for sale separate from the primary residence and may be rented separate from the primary residence;
• has floorspace which does not exceed 50 percent of the proposed or existing primary dwelling living area or 1,200 square feet; and
• provides complete independent living facilities for one or more persons including permanent provisions for living, sleeping, eating, cooking, and sanitation on the same parcel as the single-family dwelling is situated. (Gov. Code Sec. 65852.2.)

Existing law makes legislative findings and declarations regarding the importance of ADUs because they:

• provide housing for family members, students, the elderly, in-home health care providers, the disabled, and others, at below market prices within existing neighborhoods; and
• offer lower cost housing to meet the needs of existing and future residents within existing neighborhoods, while respecting architectural character. (Gov. Code Sec. 65852.150.)

Existing law provides that a public entity is not liable for an injury caused by adopting or failing to adopt an enactment or by failing to enforce any law. (Gov. Code Sec. 818.2.)

Existing law provides that a public entity is not liable for an injury caused by the issuance, denial, suspension or revocation of, or by the failure or refusal to issue, deny, suspend or revoke, any permit, license, certificate, approval, order, or similar authorization where the public entity or an employee of the public entity is authorized by enactment to determine whether or not such authorization should be issued, denied, suspended or revoked. (Gov. Code Sec. 818.4.)

Existing law, the California Constitution, provides that private property may be taken or damaged for a public use and only when just compensation, ascertained by a jury unless waived, has first been paid to, or into court for, the owner. (Cal. Const., art. I, Sec. 19.)

This bill would provide that the City of Los Angeles, pursuant to existing state law, including, but not limited to specified statutes, is not liable for an injury or for damage that has arisen from or is related to the use of an accessory dwelling unit and that is caused by any utility system, including, but not limited to, a water system or electrical system equipment, that the city designed, owns, operates, or maintains, if the City of Los Angeles has permitted the utility system equipment and the accessory dwelling unit or the utility system equipment and the structure being converted to an accessory dwelling unit to remain in the same location as it existed prior to January 1, 2018.

This bill would limit the immunity from liability conferred by the bill to use of an accessory dwelling unit or structure being converted to an accessory dwelling unit if that unit meets both of the following criteria:

• the structure was constructed prior to January 1, 2018, and has been converted or is in the process of being converted to an accessory dwelling unit pursuant to an ordinance adopted, as specified; and
• the owner of the accessory dwelling unit or structure being converted to an accessory dwelling unit, at the time of the injury or damage was attempting to bring or had brought the structure into compliance with applicable rules, regulations, or ordinances.

This bill would declare that a special statute is necessary and that a general statute cannot be made applicable within the meaning of the California Constitution Article IV, Section 16, because of the particular needs of the city of Los Angeles and its unique experience implementing the law as it previously read.

1. Existing law provides that cities may make owner occupancy of either the primary residence or the associated ADU a precondition for obtaining a permit for the creation of an ADU in an area zoned to allow single-family or multifamily use. (Gov. Code Sec. 65852.2(e).)

Existing law provides that local agencies must make owner occupancy of either the primary residence or the associated ADU a precondition for obtaining a permit for the creation of a junior ADU in an area zoned for single-family residential use. (Gov. Code Sec. 65852.22(a)(2).)

This bill would deem a property to be “owner-occupied” for purposes of a local ADU permitting ordinance, if either the primary residence or the ADU is occupied by a disabled person who is the beneficiary of a trust and that trust is the owner of the lot on which the primary residence and ADU are located.

COMMENT

1. Stated need for the bill

According to the author:

I authored AB 2299 which eased and streamlined a number of requirements for the building of ADUs. Since the passage of that bill, we have seen an explosion of permits for ADUs across the state. Some cities are still in the dark on the new rules and we are working on that, and others continue to drag their feet, but we are making a dent in our housing needs with these relatively small changes that didn’t cost the state a single dime. AB 2299 has led to the construction of more than 4,000 ADUs across the state. Nearly 1,800 have been permitted in the [City of] Los Angeles.

This year, I am carrying AB 2071 on ADU restrictions that when passed could free up another 400-600 permits that are currently stalled due to this very specific and unique issue concerning powerlines and garage conversions for existing homes.

In support of the bill, Habitat for Humanity writes:

By relieving the City of liability from ADU damages arising from city utilities, such as power lines and garage conversions, [AB 2071] will add 400-600 new ADU units that are currently stalled. These ADUs provide housing and for many Habitat for Humanity constituents, a supplemental income which can be the difference between homelessness and homeownership.

2. What is the scope of the immunity provided?

The current version of the bill says three things simultaneously: (1) the immunity proposed by the bill is limited to the City of Los Angeles; (2) that immunity is pursuant to existing state law, which extends only limited immunity from liability; and (3) the immunity proposed by the bill would cover absolutely any injury or damage arising from or related to use of an ADU and caused by any utility system permitted by the City of Los Angeles. Arguably, these three elements of the bill contradict one another and leave it unclear what the City of Los Angeles – or any other public entity for that matter – could be held liable for.

To begin with, the bill now says that it only applies to the City of Los Angeles. It also says, however, that its provisions are “pursuant to existing state law.” (Emphasis added.) This raises at least two questions. First, if the bill is based on state law, then would it not apply to the whole state, rather than just the City of Los Angeles? And, if the bill restates existing law, then why is a new statute needed at all?

The City of Los Angeles asserts that it cannot currently issue permits for ADUs conversions for structures that are located in utility easements, and the City of Los Angeles appears to believe that enactment of this bill will allow it, and only it, to begin to do so. Yet if this bill simply restates existing state law, then the City of Los Angeles already has the immunity it claims to need, and every other public entity in the state has that same degree of immunity as well.

That leads to the second question: how does the immunity proposed by the bill match up with existing immunity for public entities under state law? Government Code Section 812.2, the first statute referenced in the bill, says that a public entity is not liable for an injury caused by adopting or failing to adopt an enactment or by failing to enforce any law. Government Code Section 812.4, the second statute referenced in the bill, says that a public entity is not liable for an injury caused by the issuance, denial, suspension or revocation of, or by the failure or refusal to issue, deny, suspend or revoke, any permit, license, certificate, approval, order, or similar authorization where the public entity or an employee of the public entity is authorized by enactment to determine whether or not such authorization should be issued, denied, suspended or revoked. Taken together, the two statutes limit government liability for discretionary actions, the theory being that the political process, not the courts, is the correct place for determining whether or not government officials have exercised their legislative or law enforcement discretion wisely. (See Cal. Law Rev. Com. Comments to Gov. Code Sec. 818.2 and 818.4.)

In the context of ADUs, utility systems, and the City of Los Angeles, Government Code Sections 812.2 and 812.4 mean that the City of Los Angeles is immune from damages resulting from its decisions about whether or not to issue a permit for conversion of the ADU or a permit for installment or operation of utility equipment. Thus, for instance, under Government Code 812.4, a landowner who purchased a property with an old garage sitting under a power line out back could not successfully sue the City of Los Angeles if the City refuses that landowner a permit to convert that garage into an ADU. The landowner’s recourse is through the political system: voting in an official who will order city officials to use their discretion to grant such a permit.

It does not follow from Government Code Sections 812.2 and 812.4 that the City of Los Angeles is off the hook for any damages caused if city officials failed to properly inspect a power line, it falls on the roof of a converted ADU permitted by the City, and damages and injuries result. In the former situation, the decision about whether or not to issue a discretionary permit is the cause of the damage or injury – hence the immunity under Government Code Section 812.4. In the latter scenario, the cause of the damage and injuries is entirely unrelated to the decision to issue the permit.

Put differently, it does not appear that existing state law immunizes a public entity against all possible consequences of its actions just because the public entity issued a discretionary permit at some point in the process. Existing law only appears to grant public entities immunity from damages resulting from the permitting decision itself. If that is so, then the immunity this bill would bestow on the City of Los Angeles is something much different, and far broader, than the immunity provided by Government Code Section 812.2 and 812.4.

To complicate the issue of how broadly the bill sweeps, the language in the bill states that the immunity it would provide is “pursuant to existing state law” and includes Government Code Sections 812.2 and 812.4, but is not limited to them. Does this mean that the immunity provided by the bill is limited to state law, but not limited to the specified provisions? Or, is the immunity provided by the bill inclusive of, but not limited to existing law? The placement of the commas suggests that “pursuant to existing state law” modifies the remainder of the phrase, meaning that the immunity the bill would provide is broader than that contained in just Government Code Sections 812.2 and 812.4, but still limited to such immunities as are already contained in state law. Still, that conclusion seems to beg a return to the first question: if this bill would only provide the same immunity that the City of Los Angeles already enjoys under state law, why does the City of Los Angeles need this bill to be able to permit the ADUs in question?

If the author intends the bill to confer greater immunity on the City of Los Angeles than what the City of Los Angeles already has, then the author may wish to amend the bill to make that intention plain. If the author wishes to go in that direction however, the Committee may want to consider the policy implications carefully. In general, the greater the immunity from liability conferred on an entity, the lesser the incentive that entity has to exercise due care in its actions. In the context of, among other things, power lines that would be literally hanging over people’s heads and homes, the exercise of due care seems perhaps especially critical.

3. Constitutional considerations

In addition to the policy concerns raised above, at least some aspects of the immunity proposed by this bill may be unconstitutional.

Article I, Section 19 of the California Constitution provides: “Private property may be taken or damaged for a public use and only when just compensation, ascertained by a jury unless waived, has first been paid to, or into court for, the owner.” Analogous to the takings clause of the Fifth Amendment to the United States Constitution, this provision provides the government the right to take private property when deemed necessary for the public interest and requires it to provide just compensation in return. The more well-known exercise of this right is through eminent domain actions, whereby government entities bring suit against a property owner to condemn the relevant property and convert it for a public purpose.

However, this provision also provides a right of action for inverse condemnation. Such a claim can be brought against a public entity for conduct that results in damage to private property for public use. “‘An inverse condemnation action is an eminent domain proceeding initiated by the property owner rather than the condemner. The principles which affect the parties’ rights in an inverse condemnation suit are the same as those in an eminent domain action.’” (Customer Co. v. City of Sacramento (1995) 10 Cal.4th 368, 377, fn. 4, internal citations omitted.)

The inverse condemnation doctrine deals with compensation for damages to real property: “…a governmental entity may be held strictly liable, irrespective of fault, where a public improvement constitutes a substantial cause of the plaintiff’s damages even if only one of several concurrent causes.” (Marshall v. Dep’t of Water & Power (1990) 219 Cal.App.3d 1124, 1139, internal citations omitted.) The courts have made clear that a property owner is entitled to recover compensation for “any physical injury to real property proximately caused by [a public] improvement as deliberately designed and constructed.” (Holtz v. Superior Court of San Francisco (1970) 3 Cal.3d 296, 311.)

Inverse condemnation actions have consistently been brought against public utilities. In Marshall v. Dep’t of Water & Power (1990) 219 Cal.App.3d 1124, several property owners and insurance companies successfully brought a cause of action against the Department of Water and Power of the City of Los Angeles for property damage resulting from a wildfire caused, in part, by downed power lines.

In as much as this bill purports to make the City of Los Angeles immune from paying for damages to real property by a utility system (a public improvement), it may run afoul of the constitutionally derived inverse condemnation doctrine.

4. Allowing for circumstances involving special needs or supplemental trusts

Under existing laws, local ordinances governing permitting of ADUs may – and in some cases must – require the owner of the property in question to reside in either the primary residence or the associated ADU. The policy purpose behind such a requirement is to try to ensure that the property owners have a personal stake in the overall condition of the property and the behavior of the occupants, thus reducing the possibility that the addition of an ADU will lead to a deterioration in the quality of life for the surrounding neighbors.

It is sometimes the case that a disabled person occupies a residence, but is not technically the owner because the property is held in trust for that disabled person. Such arrangements allow the disabled individual to maintain eligibility for certain public benefits. These trusts are frequently known as “special needs trusts” or “supplemental trusts.” This bill would deem a primary residence or ADU to be “owner-occupied” for the purposes of a local ordinance governing the permitting of ADUs, if the owner of the overall lot is a special needs or supplemental trust and the beneficiary of that trust lives in either the primary residence or the ADU.

5. Proposed Amendments

In order to address the issues set forth in the analysis, above, the author has offered to incorporate amendments into the bill that would:

• remove the provisions relating to special immunity for the City of Los Angeles

The specific amendments are as follows:

Amendment 1

On page 3, strike out lines 1 through 25, inclusive

Amendment 2

On page 3, in line 2, strike out “SEC. 2.” and insert:

SECTION 1.

Support: City of Los Angeles; Habitat for Humanity

Opposition: None known

HISTORY

Source: Author

Related Pending Legislation:

SB 831 (Wieckowski, 2018) would require the ordinance for the creation of accessory dwelling units to designate areas where accessory dwelling units may be excluded for health and safety purposes, as specified. The bill would also make multiple revisions to the standards permissible in a local ordinance governing approval of accessory dwelling unit permits and prohibit an accessory dwelling unit from being considered by a local agency, special district, or water corporation to be a new residential use for purposes of calculating fees charged for new development, except in certain circumstances when a new or separate utility connection between the accessory dwelling unit and the utility may be required and except for certain fees charged by a school district that the bill would limit to $3,000 per accessory dwelling unit. SB 831 is currently pending consideration before the Assembly Committee on Local Government.

SB 1469 (Skinner, 2018) is nearly identical to SB 831. SB 1469 is currently on the suspense file in the Senate Appropriations Committee.

AB 2890 (Ting, 2018) is very similar to SB 831. AB 2890 is currently pending consideration before the Senate Committee on Governance and Finance.

AB 2939 (Ting, 2018) would require the local agency to ministerially approve an application for a building permit to create within a multifamily zone at least one accessory dwelling unit within an existing multifamily structure with at least 5 residential units if specified conditions are met. AB 2939 is pending consideration before the Assembly Committee on Housing and Community Development.

Prior Legislation:

SB 229 (Wieckowski, Ch. 594, Stats. 2017), among other things, included special districts and water corporations in provisions regarding fees to ensure that no charges for connection fees or capacity charges occur when an existing structure is converted into an ADU. The bill also authorized HCD to review and comment on ADU. SB 229 was contingently enacted with AB 494 (Bloom, Ch. 602, Stats. 2017).

SB 431 (Bates, 2017) would have allowed local agencies to waive some or all building code violations in order to provide permits for existing accessory dwelling units that do not conform to code and were not permitted when constructed. SB 431 died in the Senate Committee on Transportation and Housing.

AB 494 (Bloom, Ch. 602, Stats. 2017) clarified that an ADU may be rented separate from the primary residence, but shall not be sold or otherwise conveyed separately from the primary residence. The bill also more clearly defined tandem parking and clarified that a proposal for an ADU must be approved on a lot with a proposed or existing single-family dwelling. AB 494 was contingently enacted with SB 229 (Wieckowski, Ch. 594, Stats. 2017).

SB 1069 (Wieckowski, Ch. 720, Stats. 2016) sought to ease local barriers to the development of ADUs. The bill found and declared that, among other things, allowing accessory dwelling units in single-family or multifamily residential zones provides additional rental housing stock, and these units are an essential component of housing supply in California. It established one standard for the ADU permit review process, regardless of whether a local government has adopted an ordinance or not. SB 1069 was contingently enacted with AB 2299 and contained some identical provisions.

AB 2299 (Bloom, Ch. 735, Stats. 2016) sought to ease local barriers to the development of ADUs. It established one standard for the ADU permit review process, regardless of whether a local government has adopted an ordinance or not. AB 2299 was contingently enacted with SB 1069 and contained some identical provisions.

AB 2406 (Thurmond, Ch. 755, Stats. 2016) authorized a local agency to provide by ordinance for the creation of junior accessory dwelling units, as defined, in single-family residential zones. The bill required the ordinance to include, among other things, standards for the creation of a junior accessory dwelling unit, required deed restrictions, and occupancy requirements, while prohibiting an ordinance from requiring, as a condition of granting a permit for a junior accessory dwelling unit, additional parking requirements.

Prior Vote:

Assembly Floor (Ayes 69, Noes 0)

Assembly Judiciary Committee (Ayes 10, Noes 0)

Assembly Local Government Committee (Ayes 8, Noes 1)

**************

1. See California’s High Housing Costs: Causes and Consequences (March 17, 2015) Legislative Analyst’s Office <http://www.lao.ca.gov/reports/2015/finance/housing-costs/housing-costs.pdf> (as of June 28, 2018) at p. 25. ↑

2. Id. at p. 10. ↑

ASSEMBLY THIRD READING

ATR Bill Id:AB 2071

Author:(Bloom)

As Introduced Ver:May 14, 2018

Majority vote

SUMMARY: Provides that the City of Los Angeles shall be entitled to all immunities provided by existing laws for injury or damage related to an accessory dwelling unit (ADU) for cases in which the injury or damage is proximately caused by a utility the City of Los Angeles owns, operates, or maintains. Specifically, this bill:

1. Provides that, notwithstanding any other law, the City of Los Angeles shall be entitled to all immunities provided by existing state law including but not limited to immunities provided by Government Code Sections 818.2 and 818.4 for any injury or damage that has arisen from or is related to the use of an ADU under the following circumstances:
   1. The injury or damage is caused by any utility system the city owns;
   2. The City of Los Angeles has permitted the utility system equipment and the ADU or the utility system equipment and the structure being converted to an ADU to remain in the same location as it existed prior to January 1, 2018;
   3. Cases involving the use of an ADU or a structure being converted to an accessory ADU in which the structure was constructed prior to January 1, 2018, and has been converted or is in the process of being converted to an ADU pursuant to an ordinance adopted pursuant to Government Code Section 65852.2; and,
   4. Situations in which the owner of the ADU or structure being converted to an ADU, at the time of the injury or damage was attempting to bring or had brought the structure into compliance with applicable rules, regulations, or ordinances.
2. Declares that a special statute is necessary and that a general statute cannot be made applicable within the meaning of the California Constitution Article IV, Section 16, because of the particular needs of the city of Los Angeles and its unique experience implementing the law as it previous read.

FISCAL EFFECT: None

COMMENTS:

1. ADUs. ADUs are additional living quarters on single-family lots that are independent of the primary dwelling unit. Also known as accessory apartments, accessory dwellings, mother-in-law units, or granny flats, ADUs are either attached or detached to the primary dwelling unit, and provide complete independent living facilities for one or more persons. This includes permanent provisions for living, sleeping, eating, cooking, and sanitation.

In 2016, AB 2299 (Bloom), Chapter 735, Statutes of 2016, and SB 1069 (Wieckowski), Chapter 720, Statutes of 2016, made a number of changes to state law in order to ease some of the local barriers to the development of ADUs. These changes were numerous and included reorganizing existing law to apply one standard for the ADU permit review process, regardless of whether a local government has adopted an ordinance or not, changing specified ADU building and parking standards, and placing limitations on utility connection fees and capacity charges and requirements.

1. Author's Statement. According to the author, "I authored AB 2299 which eased and streamlined a number of requirements for the building of ADUs. Since the passage of that bill, we have seen an explosion of permits for ADUs across the state. Some cities are still in the dark on the new rules and we are working on that, and others continue to drag their feet, but we are making a dent in our housing needs with these relatively small changes that didn't cost the state a single dime. AB 2299 has led to the construction of more than 4,000 ADUs across the state. Nearly 1,800 have been permitted in the [City of] Los Angeles.

"This year, I am carrying AB 2071 on ADU restrictions that when passed could free up another 400-600 permits that are currently stalled due to this very specific and unique issue concerning powerlines and garage conversions for existing homes."

1. Background. According to the City of Los Angeles, this bill is important because the current Los Angeles Department of Water and Power (LADWP) rules governing water and power allow for buildings to be built in the power line easement (i.e. in the drop line of high voltage line or at the edge of a property line) if they are uninhabited buildings. This resulted in a trend of garages or recreation rooms being built in these easements. The City notes that there have been an influx of applications to convert these buildings into ADUs. Some of these buildings have already been converted to habitat buildings. Without this change provided in this bill, LADWP will not be able to allow these units to be converted, unless part of the building is removed from the easement, which will add significant cost to applicants and potentially reduce the number of units built in the City. The intent of this bill is to remove liability related to utility systems' failures and damage to structures built before January 1, 2017, that are converted to ADUs after January 1, 2017.
2. Arguments in Support. According to supporters, California's housing affordability crisis is an issue of supply and demand, and ADUs provide communities with one of the quickest, most cost-effective options for building the housing Californians desperately need.
3. Arguments in Opposition. None on file.

Analysis Prepared by: Debbie Michel / L. GOV. / (916) 319-3958 FN: 0002922

Date of Hearing: May 8, 2018

ASSEMBLY COMMITTEE ON JUDICIARY

Mark Stone, Chair

ABPCA Bill Id:AB 2071

Author:(Bloom) – As Introduced Ver:February 7, 2018

As Proposed to be Amended

SUBJECT: ACCESSORY DWELLING UNITS: IMPROVEMENTS: LIABILITY

KEY ISSUE: GIVEN THE NEED FOR ADDITIONAL DWELLING UNITS THAT MAY HELP ALLEVIATE THE HOUSING CRISIS IN LOS ANGELES, SHALL existing immunities for public entities be provided to the city of los angeles in cases of injury or damage INVOLVING ACCESSORY DWELLING UNITS in which the injury or damage is PROXIMATELY CAUSED BY ANY UTILITY OWNED BY THE city?

SYNOPSIS

Accessory Dwelling Units (ADUs) are a form of additional living space on single-family or multi-family lots that are more commonly known as second units, accessory apartments, mother-in-law units, or granny flats. Several recent laws have streamlined rules around ADUs in the wake of the housing shortage across the state. According to the author, this bill seeks to address the specific issue faced by the City of Los Angeles regarding conversions of existing garages to ADUs in cases where the presence of powerlines may otherwise prevent the use of the structure as a habitable dwelling. A prior version of this bill would have provided any public entity with total immunity from liability for any injury, death, damage, or inverse condemnation related to the use of an ADU that is proximately caused by a utility system that the public entity owns. As proposed to be amended, this measure now extends only to the City of Los Angeles and, instead of providing full immunity from liability, it clarifies that existing state laws providing immunity to public entities also apply to injury or damages related to city-owned utilities and ADUs. The analysis discusses the bill as proposed to be amended and a description of the amendment language can be found in the comments section below. This author-sponsored measure is supported by the City of Los Angeles and the earlier version of this measure previously passed out of the Assembly Local Government Committee on a vote of 8-1.

SUMMARY: Provides that the City of Los Angeles shall be entitled to all immunities provided by existing laws for injury or damage related to an accessory dwelling unit for cases in which the injury or damage is proximately caused by a utility the City of Los Angeles owns, operates, or maintains. Specifically, this bill:

1. Provides that, notwithstanding any other law, the City of Los Angeles shall be entitled to all immunities provided by existing state law including but not limited to immunities provided by Government Code Sections 818.2 and 818.4 for any injury or damage that has arisen from or is related to the use of an accessory dwelling unit under the following circumstances:
   1. The injury or damage is proximately caused by any utility system the city owns.
   2. The legislative body of the City of Los Angeles has permitted the water system, electrical system equipment and the accessory dwelling unit or structure being converted to an accessory dwelling unit to remain in the same location as it existed prior to January 1, 2018.
   3. Cases involving the use of an accessory dwelling unit or a structure being converted to an accessory dwelling unit in which the structure was constructed prior to January 1, 2018 pursuant to Section 65852.2.
   4. Situations in which the owner of the accessory dwelling unit or structure being converted to an accessory dwelling unit was attempting to bring or had brought the structure into compliance with applicable rules, regulations, or ordinances.

EXISTING LAW:

1. Requires a standard process to approve an application for a permit to create accessory dwelling units (ADUs) within a single-family or multi-family residential zone following certain criteria, including that the ADU:
   1. Is constructed on a lot which includes an existing or proposed single-family residence. (Government Code Section 65852.2 (a)(1)(D)(ii). All further statutory references are to the Government Code unless otherwise noted.)
   2. Has independent exterior access from the existing residence, and the side and rear setbacks are sufficient for fire safety. (Section 65862.2 (e).)
   3. Would not exceed the allowable density for the lot. (Section 65852.2 (a)(1)(C).)
   4. Shall be permitted to not have fire sprinklers in cases where fire sprinklers are not required for the primary residence. (Section 65852.2 (c).)
   5. Does not require a setback if it is an existing garage that is converted to an ADU or a portion of an ADU. (Section 65852.2 (a)(1)(D)(vii).)
   6. Is not intended for sale separate from the primary residence and may be rented separate from the primary residence. (Section 65852.2 (a)(1)(D)(i).)
   7. Has floorspace which does not exceed 50 percent of the proposed or existing primary dwelling living area or 1,200 square feet. (Section 65852.2 (a)(1)(D)(iv).)
   8. Provides complete independent living facilities for one or more persons including permanent provisions for living, sleeping, eating, cooking, and sanitation on the same parcel as the single-family dwelling is situated. (Section 65852.2 (i)(4).)
2. Makes legislative findings and declarations regarding the importance of ADUs because they:
   1. Provide housing for family members, students, the elderly, in-home health care providers, the disabled, and others, at below market prices within existing neighborhoods, and
   2. Offer lower cost housing to meet the needs of existing and future residents within existing neighborhoods, while respecting architectural character. (Section 65852.150.)
3. Provides that a public entity is not liable for an injury caused by adopting or failing to adopt an enactment or by failing to enforce any law. (Section 818.2.)
4. Provides that a public entity is not liable for an injury caused by the issuance, denial, suspension or revocation of, or by the failure or refusal to issue, deny, suspend or revoke, any permit, license, certificate, approval, order, or similar authorization where the public entity or an employee of the public entity is authorized by enactment to determine whether or not such authorization should be issued, denied, suspended or revoked. (Section 818.4.)

FISCAL EFFECT: As currently in print this bill is keyed non-fiscal.

COMMENTS: Accessory Dwelling Units (ADUs) are a form of additional living space on single-family or multi-family lots that are more commonly known as second units, accessory apartments, mother-in-law units, or granny flats. Several recent laws have updated rules around ADUs in the wake of the housing shortage across the state. According to the author:

I authored AB 2299 which eased and streamlined a number of requirements for the building of ADUs. Since the passage of that bill, we have seen an explosion of permits for ADUs across the state. Some cities are still in the dark on the new rules and we are working on that and others continue to drag their feet, but we are making a dent in our housing needs with these relatively small changes that didn’t cost the state a single dime. AB 2299 has led to the construction of more than 4,000 ADUs across the state. Nearly 1,800 have been permitted in the Los Angeles.

This year, I am carrying AB 2071 on ADU restrictions that when passed could free up another 400-600 permits that are currently stalled due to this very specific and unique issue concerning powerlines and garage conversions for existing homes.

Accessory Dwelling Units in the Context of California’s Housing Crisis. ADUs offer a way to provide additional housing on existing single-family and multi-family lots without expense to state or local governments. State and local ADU ordinances allow property owners to create an ADU on their property if it meets certain criteria. Specifically, ADUs are required to have a separate kitchen, bathroom, and exterior access independent of the primary residence and must not exceed 1200 square feet or 50% of the area of the primary residence, whichever is smaller. Certain requirements around parking, fire sprinklers, and setback distances are also relaxed for ADUs.

In 2016, the Legislature enacted AB 2299 (Bloom, Ch. 735, Stats. 2016) and SB 1069 (Wieckowski, Ch. 720, Stats. 2016), both of which sought to ease some of the local barriers to the development of ADUs. These bills implemented one standard for the ADU permit review process, regardless of whether a local government has adopted an ordinance or not. In addition, these measures changed parking standards and limited utility connection fees and capacity charges and requirements.

The Issue of ADU Liability in Los Angeles. According to the City of Los Angeles, this bill will allow the Los Angeles Department of Water and Power (LADWP) to approve several ADUs which would not otherwise be able to be permitted due to prohibitions on building habitable structures in the power line easement (i.e., in the drop line of high voltage line or power lines placed at the edge of a property line). They note that LADWP rules around water and power allow for structures in the power line easement if the structures are uninhabited, such as garages or recreations rooms. The city reports experiencing an increase in applications to convert these structures to ADUs, but notes that, under existing LADWP policy, conversion cannot take place unless a part of the structure is removed from the easement. Requiring property owners to remove a portion of their structure will likely add significant cost to property owners and may therefore, according to proponents, greatly reduce the number of ADUs in the city. By clarifying that the City of Los Angeles is not liable for damages related to utility systems and ADUs, as discussed below, the proponents contend that the bill would allow more ADU applications to be approved and contribute to efforts to alleviate the serious housing shortage in Los Angeles.

Liability for Public Entities under the California Tort Claims Act. As currently in print, the bill would provide total immunity from liability to public entities for damages or injuries related to ADUs and utilities owned, operated, or maintained by the public entity. However, total immunity from liability would provide that a public entity could not be held responsible under any circumstances—even where gross negligence or willful misconduct was involved (e.g., if an ADU owner reported that a power line was sparking or had fallen down, the public entity would presumably have no incentive to fix it if they were entitled to total statutory immunity from liability). However, approval of ADUs by a public entity would be covered under existing laws which state that public entities are not liable for issuing or failing to issue any permit, license, certificate, approval, etc. in cases where a public entity is authorized by enactment to determine whether or not such authorization should be issued. (Section 818.4.) Additionally, public entities are not liable for injuries caused due to the entity adopting or failing to adopt a law, a discretionary act. (Section 818.2.) The issue of ADU permits is most closely aligned with the provisions of Section 818.4, and case law on the question of liability around certificates issued by a public entity may be relevant to the question of ADUs, utilities, and liability for the City of Los Angeles.

In particular, a 2004 appellate court held that the California Department of Food and Agriculture (CDFA) and the State of California were not liable for negligence in a case where a grapevine certification program test found that a grower’s grapevines had fanleaf virus (and thus could not receive as high of a sale price for the grapes). (Sonoma Ag Art v. Department of Food & Agriculture (2004) 125 Cal.App.4th 122.) Since issuing the grapevine certificate involved exercising discretion to determine whether or not a certificate should be given, the CDFA and the State were not liable. Citing Section 818.4, the court noted that even if the public entity has a mandatory duty to perform a task in statutory language, the duty itself can still be discretionary (and thus immune from liability) if completing it requires discretion on the part of the public entity. (Ibid.) Given that ADU permitting also involves discretion, and since the City of Los Angeles and any city-owned utility are public entities, it is likely that Section 818.4 already protects the ADU permitting activities of Los Angeles. However, this measure further clarifies these protections in order to ensure that ADU permits are not unnecessarily delayed due to concerns about liability.

Proposed Author's Amendments: Accordingly, the author proposes amendments to remove the language that would have given total immunity from liability to a public entity, and replace it with references to existing laws in the Government Code that give public entities immunity for activities, including permitting and the enactment of laws. By doing so, this language helps accomplish the author’s stated goal of the bill without creating an unnecessarily broad immunity from liability.

Additional amendments limit the bill’s application so that it no longer applies to all public entities. Given that no other jurisdiction has identified this problem in relation to accessory dwelling units and city-owned utility infrastructure, the amendments narrow the scope of the bill to only apply to the City of Los Angeles.

Finally, several clarifying amendments are added, including references to a structure “in the process of being converted to an accessory dwelling unit” in order to account for the fact that a structure in the process of being converted to an accessory dwelling unit may not, in fact, be considered an accessory dwelling unit.

The proposed amendments are as follows:

Government Code 65852.21. (a) Notwithstanding any other law, the City of Los Angeles shall be entitled to all immunities provided by existing state law including but not limited to immunities provided by Government Code Sections 818.2 and 818.4 for any injury or damage a public entity, including, but not limited to, a city, county, or city and county, public officer, including, but not limited to, a member of the legislative body of a city, county, or city and county; or an employee of a public entity shall not be liable for any personal injury, death, property damage, or inverse condemnation that has arisen from or is related to the use of an accessory dwelling unit and that is proximately caused by any utility system, including, but not limited to, a water system or electrical system equipment, that the City of Los Angeles public entity owns, operates, or maintains, if the legislative body of the City of Los Angeles a local agency has permitted the water system, electrical system equipment and the, or accessory dwelling unit, or structure being converted to an accessory dwelling unit to remain in the same location as it existed prior to January 1, 2018.

(b) This section shall only apply to the use of an accessory dwelling unit or structure being converted to an accessory dwelling unit that meets both of the following:

(1) The structure accessory dwelling unit was constructed prior to January 1, 2018 and has been converted or is in the process of being converted to an accessory dwelling unit pursuant to an ordinance adopted pursuant to Section 65852.2 as that section read on December 31, 2017.

(2) The owner of the accessory dwelling unit or structure being converted to an accessory dwelling unit, at the time of the injury or damage personal injury, death, property damage, or inverse condemnation, was attempting to bring or had brought the accessory dwelling unit structure into compliance with applicable local agency rules, regulations, or ordinances.

REGISTERED SUPPORT / OPPOSITION:

Support

City of Los Angeles

Opposition

None on file

Analysis Prepared by: Sandra Nakagawa and Anthony Lew / JUD. / (916) 319-2334

Date of Hearing: April 18, 2018

ASSEMBLY COMMITTEE ON LOCAL GOVERNMENT

Cecilia Aguiar-Curry, Chair

ABPCA Bill Id:AB 2071 (

Author:Bloom) – As Introduced Ver:February 7, 2018

SUBJECT: Accessory dwelling units: improvements: liability.

SUMMARY: Waives liability for local agencies that permitted Accessory Dwelling Units (ADUs) in specified situations. Specifically, this bill:

1. Prohibits a public entity, as defined, from being liable for any personal injury, death, property damage, or inverse condemnation that has arisen from or is related to the use of an accessory dwelling unit and that is proximately caused by any utility system, as defined, that the public entity owns, operates, or maintains, if the legislative body of a local agency has permitted the water, electrical system equipment, or ADU, to remain in the same location as it existed prior to January 1, 2018.
2. Applies the above to the use of an ADU that meets both of the following:
   1. The ADU was constructed prior to January 1, 2018, pursuant to an ordinance adopted pursuant to Government Code Section 65852.2 as that section read on December 31, 2017; and,
   2. The owner of the ADU, at the time of the personal injury, death, property damage, or inverse condemnation, was attempting to bring the ADU into compliance with applicable local agency rules, regulations, or ordinances.
3. Specifies, for provisions of the bill, that a public entity includes, but is not limited to, a city, county, or city and county, public officer, including, but not limited to, a member of the legislative body of a city, county, or city and county, or an employee of a public entity.
4. Specifies, for provisions of the bill, that a utility system includes, but is not limited to, a water system or electrical system equipment that the public entity owns, operates, or maintains.

EXISTING LAW:

1. Permits a locality, by ordinance, to provide for the creation of ADUs in single-family and multifamily residential zones.
2. Requires that, when a garage, carport, or covered parking structure is demolished in conjunction with the construction of an ADU, and the locality requires that those off-street parking spaces be replaced, the replacement spaces may be located in any configuration on the same lot as the ADU.

FISCAL EFFECT: None

COMMENTS:

1. ADUs. ADUs are additional living quarters on single-family lots that are independent of the primary dwelling unit. Also known as accessory apartments, accessory dwellings, mother-in-law units, or granny flats, ADUs are either attached or detached to the primary dwelling unit, and provide complete independent living facilities for one or more persons. This includes permanent provisions for living, sleeping, eating, cooking, and sanitation.

In 2002, AB 1866 (Wright), Chapter 1062, Statutes of 2002, required local governments to use a ministerial process for approving ADUs, notwithstanding other laws that regulate the issuance of variances or special use permits. A local government may provide for the construction of ADUs by ordinance, and may designate areas where ADUs are allowed, as well as require specified standards for parking, setback, lot coverage, and maximum size.

In 2016, AB 2299 (Bloom), Chapter 735, Statutes of 2016, and SB 1069 (Wieckowski), Chapter 720, Statutes of 2016, made a number of changes to state law in order to ease some of the local barriers to the development of ADUs. These changes were numerous and included reorganizing existing law to apply one standard for the ADU permit review process, regardless of whether a local government has adopted an ordinance or not, changing specified ADU building and parking standards, and placing limitations on utility connection fees and capacity charges and requirements.

1. Bill Summary. This bill prohibits a public entity from being liable for any personal injury, death, property damage, or inverse condemnation that has arisen from or is related to the use of an ADU and that is proximately caused by any utility system that the public entity owns, operates, or maintains, if the legislative body of a local agency has permitted the water, electrical system equipment, or ADU, to remain in the same location as it existed prior to January 1, 2018.

This bill is an author-sponsored measure.

1. Author’s Statement. According to the author, “I authored AB 2299 which eased and streamlined a number of requirements for the building of ADUs.  Since the passage of that bill, we have seen an explosion of permits for ADUs across the state. Some cities are still in the dark on the new rules and we are working on that, and others continue to drag their feet, but we are making a dent in our housing needs with these relatively small changes that didn’t cost the state a single dime. AB 2299 has led to the construction of more than 4,000 ADUs across the state.  Nearly 1,800 have been permitted in the [City of] Los Angeles. 

“This year, I am carrying AB 2071 on ADU restrictions that when passed could free up another 400-600 permits that are currently stalled due to this very specific and unique issue concerning powerlines and garage conversions for existing homes.”

1. Background. According to the City of Los Angeles, this bill is important because the current Los Angeles Department of Water and Power (LADWP) rules governing water and power allow for buildings to be built in the power line easement (i.e. in the drop line of high voltage line or at the edge of a property line) if they are uninhabited buildings. This resulted in a trend of garages or recreation rooms being built in these easements. The City notes that there have been an influx of applications to convert these buildings into ADUs. Some of these buildings have already been converted to habitat buildings. Without this change provided in AB 2071, LADWP will not be able to allow these units to be converted, unless part of the building is removed from the easement, which will add significant cost to applicants and potentially reduce the number of units built in the City. The intent of the bill is to remove liability related to utility systems’ failures and damage to structures built before January 1, 2017, that are converted to ADUs after January 1, 2017.
2. Arguments in Support. According to supporters, California’s housing affordability crisis
   is an issue of supply and demand, and ADUs provide communities with one of the quickest, most cost-effective options for building the housing Californians desperately need.
3. Arguments in Opposition. None on file.
4. Double-referral. This bill is double-referred to the Judiciary Committee.

REGISTERED SUPPORT / OPPOSITION:

Support

California Forward Action Fund

Opposition

None on file

Analysis Prepared by: Debbie Michel / L. GOV. / (916) 319-3958