The Malibu Times: Malibu is violating homeowners’ rights by rejecting ADU permits

September 23, 2021 | By DAVID DEERSON

“California faces a severe housing crisis.” That’s what the state legislature said in 2016. As part of a slew of legislative reforms intended to address the crisis, the state passed new laws designed to simplify and expedite the process for building a particular type of housing, one that is an “essential component of California’s housing supply”: accessory dwelling units.

Accessory dwelling units, or ADUs, are small homes located on the same lot as an existing single- or multi-family home, such as a garage apartment, a basement unit or a backyard cottage. Think of Fonzie’s apartment above the Cunninghams’ garage in “Happy Days.” And although California state law has mandated a streamlined application process for creating new ADUs since 2016, the City of Malibu didn’t get the message.

Readers of the Times will know that the city is in engaged in the process of updating its land use regulations to comply with the state law on ADUs. But until that process is complete, the city is legally bound to evaluate proposed ADUs under the state’s default design standards.

Unfortunately, Malibu doesn’t seem to have gotten the message—despite state law, the city council last month denied Jason and Elizabeth Riddick’s proposal to construct a state-approved ADU attached to their home on Paseo Canyon Drive.

The Riddicks needed a way to house Elizabeth’s 82-year-old mother, Renee. Renee suffers from numerous ailments and depends on her family for care. But she cannot live crowded into the same space with the Riddicks and their three children and dogs due to her weakened immune system. Even a simple cold could have a devastating effect on her health.

Attaching a modest ADU to their main house was the perfect solution to allow Renee to age with grace and dignity in the loving care of her family. And since their proposed construction fit well within the mandatory state guidelines, there should have been no trouble to quickly ascertain a permit to proceed with the project.

Yet trouble there was. Although state law requires an ADU permit application to be ministerially approved within 60 days, the planning commission did not issue a decision on the Riddicks’ proposal for nearly 11 months. When they finally did act on the application, they denied it for violating the city’s local coastal program.

It’s true that certain policies adopted pursuant to the California Coastal Act are shielded from the strictures of the new ADU law. But the Riddicks’ project, as an attached ADU, should have been considered exempt from the city’s coastal policies—a conclusion confirmed by the California Coastal Commission itself. Nevertheless, the planning commission stretched to interpret its policies in a way that enabled it to shut the project down.

That’s when the Riddicks contacted the Pacific Legal Foundation, a national, nonprofit law firm that has defended property rights from government overreach since the early 1970s—even before Fonzie moved into the Cunninghams’ ADU. PLF informed the city council that allowing Renee’s ADU isn’t just the right thing to do; it’s also required by state law. Nevertheless, the council dug in its heels and denied the Riddicks’ appeal.

That’s bad news for Malibu, which is by no means immune to the state’s housing crisis. Between 2014 and 2021, the city had set a goal to construct a total of 61 new units in the extremely low, low and moderate income categories. Not a single house was built at these income levels during the entire seven-year period.

ADUs benefit just about everybody. For property owners, they provide an opportunity for older family members like Renee to age in place; for college-aged children to gain some independence without moving into costly dorms; or for families to secure a little extra rental income to offset housing costs and property taxes. For potential tenants, ADUs provide small, affordable alternatives in an overburdened and highly competitive rental market. And for the cities like Malibu, ADUs provide a rare opportunity to build low- and middle-income housing.

That’s why the state legislature passed reforms to make ADU approvals certain, speedy, and inexpensive. And while they may put up a fight, local governments like Malibu will have to get on board sooner or later. While the city understandably relied on its legal counsel’s dubious conclusions that state law doesn’t apply, California courts are not likely to see it the same way.

This op-ed was originally published by The Malibu Times on September 23, 2021.