While 2020 was the year of confusion, and 2022 was the year of clarity, 2023 will present itself to common interest development homeowners associations as... stress free. That take is due in large part to the California legislature's inaction towards several assembly and senate bills ("AB" or "SB") presented to them in late October that would have had a direct or tangential impact on common interest developments. A couple of bills likely to annoy Boards did pass muster, however. Effective January 1, 2023:
Accessory Dwelling Units ("ADUs") and Junior Accessory Dwelling Units ("JADUs"). Recall effective January 1, 2020, common interest planned development associations can no longer prohibit or impose restrictions having the effect of prohibiting ADUs and JADUs consistent with the local jurisdictions ordinances. Effective January 1, 2023, AB 2221 and SB 897 imposed numerous changes to California's ADU laws, requiring local jurisdictions to update their ordinances to conform before the bills took effect. Of principal importance:
- Within a half-mile of a transit stop: For detached ADUs located on a lot with a single or multi-family residence, ADUs may be up to 18 feet tall by operation and up to 20 feet tall if necessary to match the roofline of the existing residence. Before 2023, 16 feet tall was the maximum allowed.
- Regardless of transit: For detached ADUs located on a lot with a multi-story multifamily residence, the ADU may be 18 feet tall by operation.
- Attached ADUs: May be 25 feet tall or as high as the existing residence allowed in the zoning, whichever is lower.
- Setbacks: Applicants must be allowed to construct an 800 sq. ft. ADU with 4 foot side- and rear-yard setbacks, regardless of the front setback for the property.
- JADUs in attached garages are now expressly permitted (before 2023, the law was ambiguous).
Do these new laws materially affect the way in which Boards and their committees review and approve owners applications to construct an ADU or JADU? Marginally. Although the new laws tighten down on local agencies using "objective" decision making standards, Boards of Directors and their architectural or design review committees may still employ subjective decision making standards in their review and approval process so long as those subjective standards do not have the effect of prohibiting the applicant's request to construct an ADU or JADU in common interest communities.
Social Media Platforms. Before January 1, 2023, Association's could impose rules (and Governing Documents could curb) restricting members and residents from using social media platforms (e.g. Next Door, Facebook, Association Website) too discuss matters relating to their interests as a member. Effective this year, AB 1410 permits members to use social media platforms to discuss these Association matters, even if the communications or literary distributions reflect negatively (i.e. criticize) on the Association. For example, members may discuss elections, common interest law, and living within the community, online. The California's legislative history suggests the bill will generally limit Association's retaliating against members or residences "peacefully assembling." Any Governing Document restriction or Operating Rule prohibiting members from discussing such matters online are now void and enforceable.
Lease Restrictions. AB 1410 also makes void and enforceable CC&R restrictions or Operating Rules that prohibit rentals or leases longer than 30 days. Recall Associations may still prohibit transient or short term rentals for periods of 30 days or less.
California Declared "State of Emergency". Associations can no longer, during a State declared "State of Emergency", enforce Governing Document violations against an Owner if the emergency makes it unsafe or impossible for the owner to prevent or correct the violating conduct. Enforcement Actions relating to an Owner's nonpayment of assessments are excluded from this law.
In conclusion, Associations or Board members following these updates may want to consider amendments to or restatements of their community's CC&Rs, Bylaws, or Operating Rules. For more information or requests for proposal, please find us at the "Contact" tab at the top of this page or message me directly at [email protected] All queries welcome.
Kyle C. Sproul, Esq.
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