Chapter 7.28 Accessory Dwelling Units and Junior Accessory Dwelling Units

7.28.010 Purpose

The purpose of this Chapter is to allow and regulate accessory dwelling units (ADUs) and junior accessory dwelling units (JADUs) in compliance with California Government Code Sections 65852.2 and 65852.22. (Ord. 2023-01 § 4 (Exh. A); Ord. 2020-04 § 2)

7.28.020 Effect of Conforming

An ADU or JADU that conforms to the standards in this Chapter will not be:

A.    Deemed to be inconsistent with the City’s General Plan and Zoning designation for the lot on which the ADU or JADU is located.

B.    Deemed to exceed the allowable density for the lot on which the ADU or JADU is located.

C.    Considered in the application of any local ordinance, policy, or program to limit residential growth.

D.    Required to correct a nonconforming zoning condition, as defined in Section 7.28.030(H). This does not prevent the City from enforcing compliance with applicable building standards in accordance with California Health and Safety Code Section 17980.12. (Ord. 2023-01 § 4 (Exh. A); Ord. 2020-04 § 2)

7.28.030 Definitions

A.    "Accessory dwelling unit" or "ADU" means an attached or a detached residential dwelling unit that provides complete independent living facilities for one (1) or more persons and is located on a lot with a proposed or existing primary residence. An accessory dwelling unit also includes the following:

1.    An efficiency unit, as defined by Section 17958.1 of the California Health and Safety Code; and

2.    A manufactured home, as defined by Section 18007 of the California Health and Safety Code.

B.    "Accessory structure" means a structure that is accessory and incidental to a dwelling located on the same lot.

C.    "Complete independent living facilities" means permanent provisions for living, sleeping, eating, cooking, and sanitation on the same parcel as the single-family or multifamily dwelling is or will be situated.

D.    "Efficiency kitchen" means a kitchen that includes all of the following:

1.    A cooking facility with appliances.

2.    A food preparation counter and storage cabinets that are of a reasonable size in relation to the size of the JADU.

E.    "Junior accessory dwelling unit" or "JADU" means a residential unit that satisfies all of the following:

1.    It is no more than five hundred (500) square feet in size.

2.    It is contained entirely within an existing or proposed single-family dwelling. An enclosed use within the residence, such as an attached garage, is considered to be a part of and contained within the single-family dwelling.

3.    It includes its own separate sanitation facilities or shares sanitation facilities with the existing or proposed single-family dwelling.

4.    If the unit does not include its own separate bathroom, then it contains an interior entrance to the main living area of the existing or proposed single-family dwelling in addition to an exterior entrance that is separate from the main entrance to the primary dwelling.

5.    It includes an efficiency kitchen, as defined in subsection D of this section.

F.    "Living area" means the interior habitable area of a dwelling unit, including basements and attics, but does not include a garage or any accessory structure.

G.    "Multifamily dwelling" or "multifamily lot" means a property that has two (2) or more permitted attached dwellings on a single lot.

H.    "Nonconforming zoning condition" means a physical improvement on a property that does not conform with current zoning standards.

I.    "Passageway" means a pathway that is unobstructed clear to the sky and extends from a street to one (1) entrance of the ADU or JADU.

J.    "Proposed dwelling" means a dwelling that is the subject of a permit application and that meets the requirements for permitting.

K.    "Public transit" means a location, including, but not limited to, a bus stop or train station, where the public may access buses, trains, subways, and other forms of transportation that charge set fares, run on fixed routes, and are available to the public.

L.    "Tandem parking" means that two (2) or more automobiles are parked on a driveway or in any other location on a lot, lined up behind one another. (Ord. 2023-01 § 4 (Exh. A); Ord. 2020-04 § 2)

7.28.040 Approvals

The following approvals apply to ADUs and JADUs under this Chapter:

A.    Building Permit Only. If an ADU or JADU complies with each of the general requirements in Section 7.28.050, it is allowed with only a building permit in the following scenarios:

1.    Converted on Single-Family Lot. One (1) ADU as described in this subsection (A)(1) and one (1) JADU on a lot with a proposed or existing single-family dwelling on it, where the ADU or JADU:

a.    Is either: within the space of a proposed single-family dwelling; within the existing space of an existing single-family dwelling; or (in the case of an ADU only) within the existing space of an accessory structure, plus up to one hundred (150) additional square feet if the expansion is limited to accommodating ingress and egress.

b.    Has exterior access that is independent of that for the single-family dwelling.

c.    Has side and rear setbacks sufficient for fire and safety, as dictated by applicable building and fire codes.

d.    The JADU complies with the requirements of Government Code Section 65852.22.

2.    Limited Detached on Single-Family Lot. One (1) detached, new-construction ADU on a lot with a proposed or existing single-family dwelling (in addition to any JADU that might otherwise be established on the lot under subsection (A)(1) of this section), if the detached ADU satisfies each of the following limitations:

a.    The side- and rear-yard setbacks are at least four (4) feet.

b.    The total floor area is eight hundred (800) square feet or smaller.

c.    The peak height above grade does not exceed the applicable height limit in Section 7.28.050(B).

3.    Converted on Multifamily Lot. One (1) or more ADUs within portions of existing multifamily dwelling structures that are not used as livable space, including but not limited to storage rooms, boiler rooms, passageways, attics, basements, or garages, if each converted ADU complies with State building standards for dwellings. Under this subsection (A)(3), at least one (1) converted ADU is allowed within an existing multifamily dwelling, up to a quantity equal to twenty-five (25) percent of the existing multifamily dwelling units.

4.    Limited Detached on Multifamily Lot. No more than two (2) detached ADUs on a lot that has an existing or proposed multifamily dwelling if each detached ADU satisfies both of the following limitations:

a.    The side- and rear-yard setbacks are at least four (4) feet. If the existing multifamily dwelling has a rear or side yard setback of less than four (4) feet, the City will not require any modification to the multifamily dwelling as a condition of approving the ADU.

b.    The peak height above grade does not exceed the applicable height limit provided in Section 7.28.050(B).

B.    ADU Permit.

1.    Except as allowed under subsection (A) of this section, no ADU may be created without a building permit and an ADU permit in compliance with the standards set forth in Sections 7.28.050 and 7.28.060.

2.    The City may charge a fee to reimburse it for costs incurred in processing ADU permits, including the costs of adopting or amending the City’s ADU ordinance. The ADU permit processing fee is determined by and approved by the City Council by resolution for costs incurred.

C.    Process and Timing.

1.    An ADU permit is considered and approved ministerially, without discretionary review or a hearing.

2.    The City must approve or deny an application to create an ADU or JADU within sixty (60) days from the date that the City receives a completed application. If the City has not approved or denied the completed application within sixty (60) days, the application is deemed approved unless either:

a.    The applicant requests a delay, in which case the sixty (60) day time period is tolled for the period of the requested delay; or

b.    When an application to create an ADU or JADU is submitted with a permit application to create a new single-family or multifamily dwelling on the lot, the City may delay acting on the permit application for the ADU or JADU until the City acts on the permit application to create the new single-family or multifamily dwelling, but the application to create the ADU or JADU will still be considered ministerially without discretionary review or a hearing.

3.    If the City denies an application to create an ADU or JADU, the City must provide the applicant with comments that include, among other things, a list of all the defective or deficient items and a description of how the application may be remedied by the applicant. Notice of the denial and corresponding comments must be provided to the applicant within the sixty (60) day time period established by subsection (C)(2) of this section.

4.    A demolition permit for a detached garage that is to be replaced with an ADU is reviewed with the application for the ADU and issued at the same time. (Ord. 2023-01 § 4 (Exh. A); Ord. 2020-04 § 2)

7.28.050 General ADU and JADU Requirements

The following requirements apply to all ADUs and JADUs that are approved under Section 7.28.040(A) or (B):

A.    Location and Permitted Areas.

1.    An ADU or JADU subject only to a building permit under Section 7.28.040(A) may be created on a lot in a residential or mixed use zone.

2.    An ADU or JADU subject to an ADU permit under Section 7.28.040(B) may be created on a lot that is zoned to allow single-family dwelling residential use or multifamily dwelling residential use.

3.    Location. No ADU is permitted on any lot that is located in a Very High Fire Hazard Severity Zone designated by the City of La Habra Heights in accordance with Government Code Section 51178, unless the ADU complies with each of the following requirements:

a.    Notwithstanding any other provision of this Chapter, the ADU is protected throughout with an approved automatic fire sprinkler system, in compliance with adopted plumbing, building, and fire codes;

b.    Notwithstanding any other provision of this Chapter, one (1) off-street parking space is provided for the ADU; and

c.    In the event the ADU is located on a through lot or a corner lot, the lot must front on at least one (1) street that is improved with a paved roadway width of twenty (20) feet or more in unobstructed width after any associated dedication and improvement.

B.    Height.

1.    Except as otherwise provided by subsections (B)(2) and (B)(3) of this section, a detached ADU created on a lot with an existing or proposed single-family or multifamily dwelling unit may not exceed sixteen (16) feet in height.

2.    A detached ADU may be up to eighteen (18) feet in height if it is created on a lot with an existing or proposed single-family or multifamily dwelling unit that is located within one-half (1/2) mile walking distance of a major transit stop or a high quality transit corridor, as those terms are defined in Section 21155 of the Public Resources Code, and the ADU may be up to two (2) additional feet in height (for a maximum of twenty (20) feet) if necessary to accommodate a roof pitch on the ADU that is aligned with the roof pitch of the primary dwelling unit.

3.    A detached ADU created on a lot with an existing or proposed multifamily dwelling that has more than one (1) story above grade may not exceed eighteen (18) feet in height.

4.    An ADU that is attached to the primary dwelling may not exceed twenty-five (25) feet in height or the height limitation imposed by the underlying zone that applies to the primary dwelling, whichever is lower. Notwithstanding the foregoing, ADUs subject to this subsection (B)(4) may not exceed two stories.

5.    For purposes of this subsection (B), height is measured above existing legal grade to the peak of the structure.

C.    Fire Sprinklers.

1.    Fire sprinklers are required in an ADU if sprinklers are required in the primary residence.

2.    The construction of an ADU does not trigger a requirement for fire sprinklers to be installed in the existing primary dwelling.

D.    Rental Term. No ADU or JADU may be rented for a term that is shorter than thirty (30) days. This prohibition applies regardless of when the ADU or JADU was created.

E.    No Separate Conveyance. An ADU or JADU may be rented, but, except as otherwise provided by Government Code Section 65852.26, no ADU or JADU may be sold or otherwise conveyed separately from the lot and the primary dwelling (in the case of a single-family lot) or from the lot and all of the dwellings (in the case of a multifamily lot).

F.    Septic System. If the ADU or JADU will connect to an on-site wastewater-treatment system, the owner must include with the application a percolation test completed within the last five (5) years or, if the percolation test has been recertified, within the last ten (10) years.

G.    Owner Occupancy.

1.    An ADU that is permitted after January 1, 2020, but before January 1, 2025, is not subject to any owner-occupancy requirement.

2.    Unless applicable law requires otherwise, all ADUs that are permitted on or after January 1, 2025, are subject to an owner-occupancy requirement. A natural person with legal or equitable title to the property must reside on the property as the person’s legal domicile and permanent residence.

3.    As required by State law, all JADUs are subject to an owner-occupancy requirement. A natural person with legal or equitable title to the property must reside on the property, in either the primary dwelling or JADU, as the person’s legal domicile and permanent residence. However, the owner-occupancy requirement of this subsection (G)(3) does not apply if the property is entirely owned by another governmental agency, land trust, or housing organization.

H.    Deed Restriction. Prior to issuance of a building permit for an ADU or JADU, a deed restriction must be recorded against the title of the property in the County Recorder’s office and a copy filed with the Director. The deed restriction must run with the land and bind all future owners. The form of the deed restriction will be provided by the City and must provide that:

1.    Except as otherwise provided in Government Code Section 65852.26, the ADU or JADU may not be sold separately from the primary dwelling.

2.    The ADU or JADU is restricted to the approved size and to other attributes allowed by this Chapter, stating the square footage of the unit.

3.    The deed restriction runs with the land and may be enforced against future property owners.

4.    The deed restriction may be removed if the owner eliminates the ADU or JADU, as evidenced by, for example, removal of the kitchen facilities. To remove the deed restriction, an owner may make a written request of the Director, providing evidence that the ADU or JADU has in fact been eliminated. The Director may then determine whether the evidence supports the claim that the ADU or JADU has been eliminated. Appeal may be taken from the Director’s determination consistent with other provisions of this Code. If the ADU or JADU is not entirely physically removed, but is only eliminated by virtue of having a necessary component of an ADU or JADU removed, the remaining structure and improvements must otherwise comply with applicable provisions of this Code.

5.    The deed restriction is enforceable by the Director or his or her designee for the benefit of the City. Failure of the property owner to comply with the deed restriction may result in legal action against the property owner, and the City is authorized to obtain any remedy available to it at law or equity, including, but not limited to, obtaining an injunction enjoining the use of the ADU or JADU in violation of the recorded restrictions or abatement of the illegal unit.

I.    Building and Safety.

1.    Must Comply With Building Code. Subject to subsection (I)(2) of this section, all ADUs and JADUs must comply with all local building code requirements.

2.    No Change in Occupancy. Construction of an ADU does not constitute a Group R occupancy change under the local building code, as described in Section 310 of the California Building Code, unless the building official or Code Enforcement Division officer makes a written finding based on substantial evidence in the record that the construction of the ADU could have a specific, adverse impact on public health and safety. Nothing in this subsection (I)(2) prevents the City from changing the occupancy code of a space that was uninhabitable space or that was only permitted for nonresidential use and was subsequently converted for residential use in accordance with this section. (Ord. 2023-01 § 4 (Exh. A); Ord. 2020-04 § 2)

7.28.060 Specific ADU Requirements

The following requirements apply to ADUs that require an ADU permit under Section 7.28.040(B):

A.    Maximum Size.

1.    The maximum size of a detached or attached ADU subject to this section is eight hundred fifty (850) square feet for a studio or one (1) bedroom unit and one thousand (1,000) square feet for a unit with more than one (1) bedroom.

2.    An attached ADU that is created on a lot with an existing primary dwelling is further limited to fifty (50) percent of the floor area of the existing primary dwelling, subject to subsection (A)(3) of this section.

3.    Application of other development standards in this section might further limit the size of the ADU, but no application of a percentage-based size restriction or front setback requirement may require the ADU to be smaller than eight hundred (800) square feet.

B.    Setbacks.

1.    No part of any ADU subject to this section may be located within thirty-five (35) feet of a front property line, subject to subsection (A)(3) of this section.

2.    Detached ADUs shall not be located between a proposed or existing primary dwelling unit and a front property line, subject to subsection (A)(3) of this section.

3.    No part of any ADU subject to this section may be located within four (4) feet of a side or rear property line.

4.    No setback is required for an ADU that is subject to this section if the ADU is constructed in the same location and to the same dimensions as an existing structure.

C.    Passageway. No passageway, as defined by Section 7.28.030(I), is required for an ADU.

D.    Parking.

1.    Generally. One (1) off-street parking space is required for each ADU. The parking space may be provided in setback areas or as tandem parking, as defined by Section 7.28.030(L). When located in a required front yard, the parking must be located on an existing paved driveway, or a newly created parking space attached to the existing driveway in a setback. No new driveway or curb cut shall be created nor may an existing curb cut be widened.

2.    Exceptions. No parking under subsection (D)(1) of this section is required in the following situations:

a.    The ADU is located within one-half (1/2) mile walking distance of public transit, as defined in Section 7.28.030(K).

b.    The ADU is located within an architecturally and historically significant historic district.

c.    The ADU is part of the proposed or existing primary residence or an accessory structure under Section 7.28.040(A)(1).

d.    When on-street parking permits are required but not offered to the occupant of the ADU.

e.    When there is an established car share vehicle stop located within one (1) block of the ADU.

f.    When the permit application to create an ADU is submitted with an application to create a new single-family or new multifamily dwelling on the same lot; provided, that the ADU or the lot satisfies any other criteria listed in subsections (D)(2)(a) through (D)(2)(e) of this section.

3.    No Replacement. When a garage, carport, or covered parking structure is demolished in conjunction with the construction of an ADU or converted to an ADU, those off-street parking spaces are not required to be replaced.

E.    Architectural Requirements.

1.    The materials and colors of the exterior walls, roof, and windows and doors must match the appearance and architectural design of those of the primary dwelling.

2.    The roof slope must match that of the dominant roof slope of the primary dwelling. The dominant roof slope is the slope shared by the largest portion of the roof.

3.    The exterior lighting must be limited to down-lights or as otherwise required by the building or fire code.

4.    The ADU must have an independent exterior entrance, apart from that of the primary dwelling.

5.    The interior horizontal dimensions of an ADU must be at least ten (10) feet wide in every direction, with a minimum interior wall height of seven (7) feet.

6.    Windows and doors of the ADU shall not have a direct line of sight to an adjoining residential property. Landscaping or privacy glass may be used to provide screening and prevent a direct line of sight.

7.    All windows and doors that are less than thirty (30) feet from a property line that is not a right-of-way line must either be (for windows) clerestory with the bottom of the glass at least six (6) feet above the finished floor, (for windows and for doors) utilize frosted or obscure glass, or (for doors) opaque.

8.    The architectural treatment of an ADU to be constructed on a lot that has an identified historical resource listed on the Federal, State, or local register of historic places must comply with all applicable ministerial requirements imposed by the Secretary of the Interior.

F.    Lighting Requirements.

1.    Outdoor lighting must be hooded, fully shielded, and aimed downward. Outdoor lighting shall not be on all night, and if it is motion sensor, it can be on for no longer than two (2) minutes.

2.    Light levels at a property line shall not exceed 0.05 foot-candles.

3.    The source of light (the bulb itself) should not be visible from adjacent properties or public or private rights-of-way.

G.    Landscape Requirements.

1.    Evergreen landscape screening must be planted and maintained between the ADU and adjacent parcels and between the ADU and public or private street as follows:

a.    At least one (1) fifteen (15) gallon size plant shall be provided for every five (5) linear feet of exterior wall extending fifteen (15) feet beyond the exterior wall or to the property line. Alternatively, at least one (1) twenty-four (24) inch box size plant shall be provided for every ten (10) linear feet of exterior wall extending fifteen (15) feet beyond the exterior wall or to the property line.

b.    Plant specimens for screening must be at least eight (8) feet tall above grade when installed.

c.    Solid fences or walls shall not be used for screening. Open fences, such as chain link, must be screened by vegetation, such as vines.

2.    All landscaping must be from the City’s approved plant list.

3.    Plantings shall be maintained below the ridgeline of the structure.

4.    Any plants that die or are removed shall be replaced meeting specifications above.

H.    Historical Protections. An ADU that is subject to this section and that is on or within six hundred (600) feet of real property that is listed in the California Register of Historic Resources must be located so as to not be visible from any public right-of-way. (Ord. 2023-01 § 4 (Exh. A); Ord. 2020-04 § 2)

7.28.070 Fees

The following requirements apply to all ADUs and JADUs that are approved under Section 7.28.040(A) or (B).

A.    Impact Fees.

1.    No impact fee is required for an ADU or JADU that is less than seven hundred fifty (750) square feet in size. For purposes of this subsection (A)(1), "impact fee" means a "fee" under the Mitigation Fee Act (Government Code Section 66000(b)) and a fee under the Quimby Act (Government Code Section 66477). "Impact fee" here does not include any connection fee or capacity charge for water or sewer service.

2.    Any impact fee that is required for an ADU that is seven hundred fifty (750) square feet or larger in size must be charged proportionately in relation to the square footage of the primary dwelling unit (e.g., the floor area of the primary dwelling, divided by the floor area of the ADU, times the typical fee amount charged for a new dwelling).

B.    Utility Fees.

1.    If an ADU is constructed with a new single-family home, a separate utility connection directly between the ADU and the utility and payment of the normal connection fee and capacity charge for a new dwelling are required.

2.    Except as described in subsection (B)(1) of this section, converted ADUs on a single-family lot that are created under Section 7.28.040(A)(1) are not required to have a new or separate utility connection directly between the ADU and the utility. Nor is a connection fee or capacity charge required.

3.    Except as described in subsection (B)(1) of this section, all ADUs that are not covered by subsection (B)(2) of this section require a new, separate utility connection directly between the ADU and the utility.

a.    The connection is subject to a connection fee or capacity charge that is proportionate to the burden created by the ADU, based on either the floor area or the number of drainage-fixture units (DFU) values, as defined by the Uniform Plumbing Code, upon the water or sewer system.

b.    The portion of the fee or charge that is charged by the City may not exceed the reasonable cost of providing this service. (Ord. 2023-01 § 4 (Exh. A); Ord. 2020-04 § 2)

7.28.080 Nonconforming Zoning Code Conditions, Building Code Violations, and Unpermitted Structures

A.    Generally. The City will not deny an ADU or JADU application due to a nonconforming zoning condition, building code violation, or unpermitted structure on the lot that does not present a threat to the public health and safety and that is not affected by the construction of the ADU or JADU.

B.    Unpermitted ADUs Constructed Before 2018.

1.    Permit to Legalize. As required by State law, the City may not deny a permit to legalize an existing but unpermitted ADU that was constructed before January 1, 2018, if denial is based on either of the following grounds:

a.    The ADU violates applicable building standards; or

b.    The ADU does not comply with the State ADU law (Government Code Section 65852.2) or this ADU chapter.

2.    Exceptions.

a.    Notwithstanding subsection (B)(1) of this section, the City may deny a permit to legalize an existing but unpermitted ADU that was constructed before January 1, 2018, if the City makes a finding that correcting a violation is necessary to protect the health and safety of the public or of occupants of the structure.

b.    Subsection (B)(1) of this section does not apply to a building that is deemed to be substandard in accordance with California Health and Safety Code Section 17920.3. (Ord. 2023-01 § 4 (Exh. A))

7.28.090 Nonconforming ADUs and Discretionary Approval

Any proposed ADU or JADU that does not conform to the objective standards set forth in Sections 7.28.010 through 7.28.080 may be allowed by the City with a conditional use permit in accordance with the other provisions of this Article. (Ord. 2023-01 § 4 (Exh. A); Ord. 2020-04 § 2. Formerly 7.28.080)