HomeMy WebLinkAbout090925-05.1 HDF Letter
Sep 9, 2025
Town of Danville
500 La Gonda Way
Danville, CA 94526
By email: devserv@danville.ca.gov
CC: twilliams@danville.ca.gov; Rewing@Danville.ca.gov; Msunseri@danville.ca.gov;
Re: Proposed Amendments to the Town’s ADU Regulations
Dear Danville Planning Commission,
The California Housing Defense Fund (“CalHDF”) submits this letter as a public comment
regarding item 5.1 for the Planning Commission meeting of September 9, 2025, an
amendment to the Town’s regulations for the construction of accessory dwelling units
(“ADUs”) and junior accessory dwelling units (“JADUs”).
There are specific portions of the proposed ADU regulations that violate state law, and the
Town should correct these issues before passing the ordinance.
Background
The law gives local governments authority to enact zoning ordinances that implement a
variety of development standards on ADUs. (Gov. Code, § 66314.) The standards in these local
ordinances are limited by state law so as not to overly restrict ADU development. (See id.)
Separately from local ADU ordinances, Government Code section 66323 establishes a
narrower set of ADU types that local governments have a ministerial duty to approve.
“Notwithstanding Sections 66314 to 66322 ... a local agency shall ministerially approve” these
types of ADUs. (Id. at subd. (a).) This means that ADUs that satisfy the minimal requirements
of section 66323 must be approved regardless of any contrary provisions of the local ADU
ordinance. (Ibid.) Local governments may not impose their own standards on such ADUs.
(Gov. Code, § 66323, subd. (b) [“A local agency shall not impose any objective development or
design standard that is not authorized by this section upon any accessory dwelling unit that
meets the requirements of any of paragraphs (1) to (4), inclusive, of subdivision (a).”].)
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In addition, ADUs that qualify for the protections of Government Code section 66323, like
other ADUs, must be processed by local governments within 60 days of a complete permit
application submittal. (Gov. Code, § 66317, subd. (a).)
State law also prohibits creating regulations on ADU development not explicitly allowed by
state law. Government Code Section 66315 states, “No additional standards, other than those
provided in Section 66314, shall be used or imposed, including an owner-occupant
requirement, except that a local agency may require that the property may be used for
rentals of terms 30 days or longer.”
General Treatment of Section 66323 ADUs
Code section 32-76.13, Statewide Exemption Accessory Dwelling Units, waives development
standards “to the extent necessary to allow an Accessory Dwelling Unit up to 800 square feet
in size.”
This is insufficient. Government Code section 66323, subdivision (b) explicitly prohibits the
Town from applying any local design or development standards. The Town therefore may
not force section 66323 ADUs to adhere to any local design or development standards,
regardless of what may or may not be feasible in the eyes of the Town.
Also, this standard is not objective. It is impossible for an applicant to know which code
provisions the Town will decide to waive. For instance, if an applicant proposes a front yard
ADU, which is legal pursuant to Government Code, section 66323, but the Town disapproves
it based on staff ’s judgement that an ADU might be developable in the backyard, then this
provision is plainly not objective. The applicant cannot know ex ante and with certainty
under what circumstances the Town will judge that lot conditions allow (or do not allow) the
waiver of these standards. Cities (and towns) may impose only “objective standards” on
ADUs. (Gov. Code, § 66314, subd. (b)(1); see also Gov. Code, § 66315 [stating local jurisdictions
may only impose standards authorized by section 66314].) “Objective standards” are
“standards that involve no personal or subjective judgment by a public official and are
uniformly verifiable by reference to an external and uniform benchmark or criterion
available and knowable by both the development applicant or proponent and the public
official prior to submittal.” (Gov. Code, § 66313, subd. (i).)
HCD, which has the power to “adopt … guidelines to implement uniform standards or criteria
that supplement or clarify the terms, references, and standards” of the state ADU law,
confirms that the Town may not impose non-objective standards on ADUs. HCD’s January
2025 ADU Handbook, on page 35, states: “Development standards [for ADUs] must be
objective to allow for ministerial review.”
The Town must exempt section 66323 ADUs from all local design and development
standards, as is required by state law. (Gov. Code, § 66323, subd. (b).)
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Impermissible Design Requirements
Code section 32-76.5(e) imposes design requirements on ADUs, including color, siding, and
roof materials.
However, the Town may only require such design requirements for ADUs that do not qualify
for the protections of Government Code section 66323. As discussed above, Government
Code section 66323 mandates that the City approve a specific class of ADUs subject only
to specified height and setback requirements, notwithstanding any local code requirements
to the contrary. SB 1211 made this even more explicit: Government Code section 66323,
subdivision (b): “A local agency shall not impose any objective development or design
standard that is not authorized by this section upon any accessory dwelling unit that meets
the requirements of any of paragraphs (1) to (4), inclusive, of subdivision (a).”
See pages 18-20 of the HCD’s January 2025 ADU Handbook for further information on
section 66323 ADUs. For instance, from page 20 of the Handbook, (emphasis added):
A local agency may not impose development or design standards, including both
local standards and standards found in State ADU Law, on 66323 Units that are not
specifically listed in Government Code section 66323. (Gov. Code, § 66323, subds. (a),
(b).) This includes, but is not limited to, parking, height, setbacks, or other zoning
provisions (e.g., lot size, open space, floor area ratio, etc.
The Town must exempt section 66323 ADUs from all design requirements.
Unclear Allowance of Detached ADUs in Single Family Districts
Code section 32-76.6(e)(3) seems to allow a detached ADU in single-family districts only if it
is combined with a conversion ADU and a JADU. It seems improbable that the Town intended
this. Additionally, code section 32-76.6 regulates attached ADUs, and it is odd to include a
regulation on detached ADUs inside a code section that regulates attached ADUs.
We recommend editing this section to clarify that a detached ADU is allowed in conjunction
with every single-family home in residential or mixed-use zones, whether or not there is
also a conversion ADU and a JADU on the property, as is required by Government Code
section 66323, subdivision (a)(2).
Impermissible Front Setback Requirements
Code section 32-76.7(b) applies underlying front setbacks to detached ADUs in single-family
zoning districts, relaxing this requirement only “to the extent necessary to allow for an
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Accessory Dwelling Unit of at least 800 square feet.”
Code section 32-76.9(c) applies underlying front setbacks to detached ADUs in multi-family
zoning districts, relaxing this requirement only “to the extent necessary to allow for an
Accessory Dwelling Unit of at least 800 square feet.”
However, Government Code section 66323, subdivision (b) does not permit any imposition of
front setback requirements for section 66323 ADUs if the ADUs qualify for the protections of
that section of law.
HCD has issued guidance under its authority in Government Code section 66327 (that
guidance is located in the January 2025 HCD ADU Handbook, page 18) affirming the duty of
local agencies to allow ADUs protected by Government Code section 66323 in the front
setback under all circumstances: “66323 Units do not have to comply with lot coverage, front
setbacks, and design standards.” This applies whether the property is a single family home
or a multifamily building.
There are many policy reasons for this. For instance, a homeowner may prefer to preserve a
private backyard space while redeveloping the less useful front yard. While children may
play in the backyard, the front yard is closer to the street and less safe for a variety of
activities. The Town therefore must allow front yard ADUs that comply with the standards in
Government Code section 66323, subdivision (a) both on single family and on multifamily
properties.
Also, this standard is not objective or sufficient. For instance, if an applicant proposes a front
yard ADU, which is legal pursuant to Government Code, section 66323, but the Town
disapproves it based on staff’s judgement that an ADU might be developable in the backyard,
then this provision is plainly not objective. The applicant cannot know ex ante and with
certainty under what circumstances the Town will judge that lot conditions allow (or do not
allow) the waiver of the front yard setback standard.
As discussed supra, Cities (and towns) may impose only “objective standards” on ADUs. (Gov.
Code, § 66314, subd. (b)(1); see also Gov. Code, § 66315 [stating local jurisdictions may only
impose standards authorized by section 66314].) HCD’s ADU Handbook confirms this, on
page 35. “Objective standards” are “standards that involve no personal or subjective
judgment by a public official and are uniformly verifiable by reference to an external and
uniform benchmark or criterion available and knowable by both the development applicant
or proponent and the public official prior to submittal.” (Gov. Code, § 66313, subd. (i).)
Additionally, Government Code section 66323, subdivision (a)(4) allows detached ADUs on
multifamily parcels without size restriction, which means that the code (non-objective)
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carveout for 800 square foot ADUs is not sufficient to cover detached ADUs on multifamily
parcels.
The Town should exempt section 66323 ADUs from all front setback requirements, as is
required by state law.
Required Height Allowance
Code section 32-76.9(d) generally limits detached ADUs on multi-family parcels to 18 feet in
height. However, Government Code section 66321, subdivision (b)(4)(B) obligates the Town to
allow an additional two feet of height to align the roof pitch with that of the primary
dwelling. The Town should amend its code to reflect this requirement of state law.
Impermissible Maximum Unit Sizes on Multi-family Parcels
Code section 32-76.9(e) limits the size of new construction, detached ADUs on multi-family
parcels to 1,200 square feet.
However, the Town may not impose any size limits on ADUs eligible for the protections of
Government Code section 66323, subdivision (a)(4), which allows the development of up to
eight detached ADUs on multifamily properties.
Government Code section 66323, subdivision (b) states, “A local agency shall not impose any
objective development or design standard that is not authorized by this section upon any
accessory dwelling unit that meets the requirements of any of paragraphs (1) to (4), inclusive,
of subdivision (a).” This means that the City cannot impose any standards on section 66323
ADUs beyond what is specifically allowed in that section of state law, including a size limit
for ADUs on multifamily parcels developed pursuant to Government Code section 66323,
subdivision (a)(4).
See pages 18-20 of the January 2025 HCD ADU Handbook for more information on section
66323 ADUs.
The Town should amend its ADU ordinance to remove this maximum unit size restriction, as
it is not permitted by state law for new detached ADUs on multifamily properties.
Impermissible Size Limit on Conversion ADUs
Code section 32-76.11(a) limits the conversion of existing space inside a single-family
dwelling to 50% of the existing dwelling. This code section also limits conversion ADU size to
850 square feet or 1,000 square feet, depending on bedroom count.
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However, the Town may not apply this size limit to ADUs developed pursuant to Government
Code section 66323, subdivision (a)(1).
As discussed supra, Government Code section 66323, subdivision (a) obliges the Town to
approve certain types of ADUs without imposing any development standards not specifically
allowed by section 66323. (Gov. Code, § 66323, subd. (b).) There are no size limits in section
66323 for ADUs created via the conversion of existing space, and the Town may not impose
one unilaterally.
The Town should amend its ADU ordinance to remove this maximum unit size restriction, as
it is not permitted by state law.
Impermissible Parking Requirements
Code section 32-76.14 imposes parking requirements on all ADUs, less certain exceptions.
However, as discussed supra, the City cannot require parking for ADUs that conform to the
requirements of Government Code section 66323, subdivision (a), as section 66323,
subdivision (b) specifically exempts such ADUs from all local requirements.
From page 20 of the January 2025 HCD ADU Handbook (emphasis added):
A local agency may not impose development or design standards, including both
local standards and standards found in State ADU Law, on 66323 Units that are not
specifically listed in Government Code section 66323. (Gov. Code, § 66323, subds. (a),
(b).) This includes, but is not limited to, parking, height, setbacks, or other zoning
provisions (e.g., lot size, open space, floor area ratio, etc.).
The Town must amend its ADU ordinance to exempt section 66323 ADUs from all parking
requirements, as is required by state law.
Out-of-Date Reference
Code section 32-76.2(a) refers to Government Code section 65852.2, subdivision (i)(4).
However, state ADU law was reorganized in 2024, and it is now located at Government Code
section 66310 et seq.
⧫ ⧫ ⧫
It is laudable that the Town is updating its ADU regulations as state law changes. However,
the Town should make sure that its zoning regulations comply with state law.
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CalHDF is a 501(c)(3) non-profit corporation whose mission includes advocating for
increased access to housing for Californians at all income levels, including low-income
households. You may learn more about CalHDF at www.calhdf.org.
Sincerely,
Dylan Casey
CalHDF Executive Director
James M. Lloyd
CalHDF Director of Planning and Investigations
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