ADUs in the Coastal Zone

Updated October 2022

California has 19 coastal counties that account for only 22% of the state’s land mass, yet account for 68% of the population, 80% of wages, and 80% of GDP. If you’re one of the many who live in a “coastal zone,” the good news is that the Coastal Commission is in alignment with California in supporting moderate affordable housing, including ADUs. Getting a permit for an ADU in the coastal zone is becoming much more likely, though the process may take time and it’s important that your ADU does not have “adverse effects” on the environment (more on that in a minute).

As of January 1, 2020, new state laws changed requirements on how local governments can and cannot regulate ADUs and JADUs, with the goal of increasing statewide availability of smaller & more affordable housing units. Generally, the California Coastal Commission supports affordable housing options within the coastal zone. Nevertheless, a homeowner and their contractor must comply with both the new state laws as well as the underlying Local Coastal Program (LCP) which governs their jurisdiction.

It is somewhat opaque as to how these laws impact existing LCPs adopted by coastal cities, and generally how the new laws will interact with Coastal Act policies. In places where LCPs conflict with the new regulations, the LCPs will continue to stand until the long process of amending the LCP is complete. So in some coastal areas you (still) may not be able to build an ADU immediately, but within a few years it may be possible as the local regulations catch up. Of note, we’re noticing much stronger headwinds for securing permits to build ADUs in the following locations:

• Bluff Top Site
• Hillside Overlay Zone
• Wildland Urban Interface Site
• Environmentally Sensitive Habitat Area
• Very High Fire Hazard Area

If the ADU is attached, the project may be exempt from a coastal development permit (CDP); however, the development of detached ADU will likely require a CDP unless there is an existing waiver program in that underlying LCP. A homeowner may be exempt from a CDP in certain cases where the development is de minimus (e.g. no adverse effects).

And what are adverse effects? Adverse effects would include reducing the ability of the public to enjoy natural beauty of the coast, for example reducing coastal access paths, reducing coastal view, impacting slope stability or local coastal plants. So in some cases, this may mean your ADU in the coastal zone will be subject to larger setbacks.

Read on for more detail on the history and nitty gritty of ADUs in coastal zones.

Coastal Act and the California Coastal Commission

The Coastal Act was approved by the California legislature in 1976 and is umbrella legislation designed to encourage local governments to create Local Coastal Programs (LCPs) to govern decisions that determine the short- and long-term conservation and use of coastal resources. Furthermore, the Coastal Act helped establish the California Coastal Commission, an agency with quasi-judicial regulatory oversight on land use and public access in the California coastal zone.

The Coastal Act does not exempt local governments from complying with state and federal law “with respect to providing low- and moderate-income housing, replacement housing, relocation benefits, or any other obligation related to housing imposed by existing law or any other law hereafter enacted.” In fact, the Coastal Act requires the Coastal Commission to encourage housing opportunities for low- and moderate-income households. Furthermore, the Coastal Commission sees the creation of new ADUs in existing residential areas is a promising strategy for increasing the supply of lower-cost housing in the coastal zone in a way that may be able to avoid significant adverse impacts on coastal resources.

Local Government Implementation of ADU laws into their LCPs

Local governments are required to comply with both the new state requirements for ADUs and the Coastal Act. Currently certified provisions of LCPs are not, however, superseded by the new state ADU law, and continue to apply to coastal development permit (CDP) applications for ADUs until an LCP amendment is adopted by the underlying governmental agency. And this may take time….

LCP policies that conflict with the new provisions of the new ADU laws must be updated to be consistent with the new ADU provisions to the greatest extent feasible, while still complying with Coastal Act requirements. However, updating an LCP can take numerous years and is extremely sensitive with the tension between public input, political pressures, and environmental conservation needs (Example: San Diego County’s last LCP took four years to be completed between 2014-2018).

Local governments will have to identify the coastal resources within their local jurisdiction to ensure that any proposed ADU-related LCP amendment appropriately addresses protection of coastal resources consistent with the Coastal Act at the same time that it facilitates ADUs consistent with the new ADU provisions.

Local Government Review of ADU/JADU applications within the Coastal Zone

Any homeowner “wishing to perform or undertake any development in the coastal zone” is required to obtain a coastal development permit (CDP). Local planners reviewing ADU applications will first determine whether a CDP was previously issued for development of the lot and whether that CDP limits, or requires a CDP amendment for changes to the approved development or for future development of the site. Homeowners who live in the coastal zone should strongly consider contacting the San Diego Coast District Coastal Commission office (7575 Metropolitan Drive #103, San Diego, CA 92108; Phone: (619) 767-2370) if an existing Coastal Commission-issued CDP limits the applicant’s ability to apply for an ADU.

Development as defined in the Coastal Act includes not only “the placement or erection of any solid material or structure” on land, but also “change in the density or intensity of use of land.”  However, the new state laws indicate that an ADU is deemed to be an accessory use/accessory building and shall not be considered to exceed the allowable density for the lot upon which it is located, and shall be deemed to be a residential use that is consistent with the existing general plan and zoning designations for the lot.

What this means is that minor changes to an existing residential structure that do not involve the removal or replacement of major structural components (i.e. roofs, exterior walls, foundations, etc.) and that do not change the size or the intensity of use of the structure may not qualify as development within the meaning of the Coastal Act, or may qualify as development that is either exempt from coastal permit requirements and/or eligible for streamlined processing. This is great for ADUs developed within existing structures, such as garages. However, the conversion of detached structures may involve a change in the size or intensity of use that would qualify as development under the Coastal Act and require a coastal development permit, unless determined to be exempt or appropriate for waiver.

Determining Whether Your ADU Project is Exempt or Eligible for a Coastal Waiver

• Waivers. Improvements such as additions to existing single-family dwellings are generally exempt from Coastal Act permitting requirements except when they involve a risk of adverse environmental effects as specified in the Commission’s regulations. Improvements that qualify as exempt development under the Coastal Act and its implementing regulations do not require a CDP from the Commission or a local government unless required pursuant to a previously issued CDP. What this means is that, generally, the construction or conversion of an ADU contained within or directly attached to an existing single-family residence would qualify as an exempt improvement to a single-family residence. What this also means is that guest houses and detached residential units do not qualify as part of a single-family residential structure and construction of or improvements to them are therefore not exempt development.

• Exemptions. If the LCP includes a waiver provision, and the proposed ADU meets the criteria for a CDP waiver, the local government may waive the permit requirement for the proposed ADU. The Coastal Commission generally has allowed a waiver for proposed detached ADUs if the executive director of the Coastal Commission determines that the proposed ADU is a “de minimis” development, involving no potential for any adverse effects on coastal resources and is consistent with Coastal Commission policies. (Example: a large lot with a large primary dwelling would be more likely to have a small ADU deemed to be a de minimis development). Some LCPs do not allow for waivers, but may allow similar expedited approval procedures. Those other expedited approval procedures may apply. If an LCP does not include provisions regarding CDP waivers or other similar expedited approvals, the local government may submit an LCP amendment to the Coastal Commission to authorize those procedures. Overall, if your local agency doesn’t have an existing waiver procedure, more red tape will be required which will cost time and money.

• No Exemption or Waiver. If a proposed ADU constitutes development, is not exempt, and is not subject to a waiver or similar expedited Coastal Act approval authorized in the certified LCP, it requires a CDP. The CDP must be consistent with the requirements of the certified LCP and, where applicable, the public access and recreation policies of the Coastal Act. The local government then must provide the required public notice for any CDP applications for ADUs and process the application pursuant to LCP requirements, but should process it within the time limits contained in the ADU law (60 days) if feasible. Once the local government has issued a decision, it must send the required final local action notice to the San Diego Coastal District Coastal Commission office. If the ADU qualifies as appealable development, a local government action to approve a CDP for the ADU may be appealed to the Coastal Commission.

San Diego Coastal Zone Changes September 2022

On September 7, 2022, the California Coastal Commission certified (W15) the City of San Diego’s changes to their Local Coastal Program (LCP).

A “Ministerial Review/Permit” is a permit that is granted based upon determinations that the proposed project complies with established standards set forth in either the Coastal or Non-Coastal Zoning Ordinances.

Essentially, this means that plans are approved by city staff and cannot be appealed to the Planning Commission or City Council so long as they comply with existing zoning and building regulations. This is how all ADUs have been reviewed and permitted since the 2020 state law changes advocating for ADUs. As such, it should be a very similar process with the added level of scrutiny similar to other agencies that also require a coastal permit on ADUs. There will still be noticing requirements, and this will all take more time and money. But a neighbor, staff or city council cannot unilaterally stop a project because they don’t like it… so long as the ADU regulations are complied with, the ADU may be built.

So we do not know what the process will look like yet in San Diego because it is new, but it will essentially be a longer and more expensive standard ADU submission with more paperwork requirements to make sure compliance with all coastal zone rules that are not covered or preempted by the State ADU laws.

Back on July 12, 2022, the City Council adopted modifications via Ordinance O-2022-116, prior to the regulations going into effect within the Coastal Zone, which included the following:

“Modification: Reduce Processing Level of CDPs for Most ADUs The Housing Legislation Code Update that was approved by the City Council in October of 2020 included amendments that exempted attached ADUs and JADUs from CDPs and maintained existing CDP requirements for detached ADUs. During CCC review of the update package, CCC determined that the Coastal Act did not allow ADUs and JADUs to be exempt from a CDP. However, the CCC also determined that reduced processing and administrative approval of a CDP for ADUs and JADUs is consistent with both the Coastal Act and the intent of State ADU law, which seeks to streamline approval of ADUs and JADUs. The suggested modifications made by the CCC added:

• A Process One CDP for ADUs and JADUs in the coastal zone, with administrative findings that must be made by staff during review of the building permit application. Process One applications are ministerial and cannot be appealed. Attached and detached ADUs and JADUs within the Non-Appealable Area of the Coastal Zone may be approved in accordance with the new Process One CDP.
• Attached and detached ADUs and JADUs within the Appealable Area of the Coastal Zone may be approved in accordance with the existing Process Three CDP, due to the higher resource sensitivity within the Appealable Area.
• ADUs and JADUs located entirely 3 within existing habitable area with no increase in floor area are exempt from a CDP.

These suggested modifications provide a process most similar to the process for ADUs and JADUs outside of the coastal zone while maintaining conformity to the Coastal Act, ultimately providing a more streamlined process to provide more homes within the Coastal Zone by removing discretionary processes, while at the same time ensuring protection of coastal resources through administrative findings.”

And back on October 27, 2020, the City Council adopted Ordinance O-21254, the Housing Legislation Code Update to the Municipal Code and Local Coastal Plan (LCP). The package of amendments implemented a number of land use and housing laws passed by the State legislature in 2019 that became effective January 1, 2020. These laws, among other things, addressed accessory dwelling units. State law requires the California Coastal Commission (CCC) to certify the code amendments to the Land Development Code (LDC) of the Municipal Code before they can be effective in the Coastal Zone. On December 17, 2021, the CCC conditionally certified the code amendments with several suggested modifications to the Housing Legislation Code Update related to the ADU and JADU Regulations and associated Coastal Development Permit requirements.

Parking requirements in the coastal zone

State ADU laws waive a parking requirement for ADUs that are within 0.5 mile walking distance of public transit. As of August 2021, the Coastal Commission has agreed to eliminate off-street parking requirements for ADUs in the Coastal Zone, except when the accessory dwelling unit is in an area of limited parking or within 500 feet of the coast.