San Jose unpermitted ADU Amnesty program question

[Thinh Duong]

Hi fellow investors/home owners,

Has anyone gone through the process of legalizing your existing unpermitted ADU? I'm currently just getting started on my ADU (purchased as is.) The Amnesty team said I can't go through the amnesty program because my ADU doesn't meet the setback requirement of 20 feet, zone R-1-8. Any advise/thought on how to get around this? Thanks in advance.

[Dan H.]

Originally posted by @Thinh Duong:

Originally posted by @Brian Larson:

@Thinh Duong - Which setbacks are you referring to here in SJ? The front setback? A 20 foot setback doesn't make a lot of sense based on the current ADU setbacks, if you were to build new, are only 3 feet.  https://www.sanjoseca.gov/home...   

 Hi Brian,

I'm talking about REAR setback. The inspector I talked to over email last year said my ADU needs 20 ft setbacks to qualify for amnesty program. I recently found that the HCD has issued a new ADU handbook that would qualifies my existing ADU specs, but I don't know if San Jose amnesty program will comply with the State regulation. Any further advise on this would be appreciated.

https://www.hcd.ca.gov/policy-...

TD

 >I don't know if San Jose amnesty program will comply with the State regulation. Any further advise on this would be appreciated.

A jurisdiction is not allowed to be more restrictive than the state regulation.  Unfortunately what I hear is that HCD is not much help enforcing the state regulation if a jurisdiction ignores it.  HCD will provide a determination in writing, but if the jurisdiction ignores the HCD determination then, from what I understand, HCD does not take an active role in further enforcement.  I believe they should because many smaller investors do not have the means/will to take up this fight.

However, if you were to take up the battle I believe you would win assuming HCD has provided you written documentation that indicates the 20' setback requirement is illegal. I state this on the logical thought process is that HCD has as part of its responsibilities to interpret the ADU rules and get jurisdictions to comply. They are an expert on the regulations and not either party (less biased than the ADU investor or the jurisdiction). I would hope virtually every judge would side with the HCD interpretation.

Ideally it does not get to this point. HCD provides documentation that the 20' setback restriction is not allowed. San Jose reads the documentation and approves your ADU. This is how it should proceed.

Where I have heard is jurisdictions ignore the HCD determination is when it comes to fees. In particular, the waving of certain fees for ADU <750'. In this case the jurisdiction has a financial incentive to ignore the state law and likely finds it cheaper to fight the few investors who push the issue than to stop collecting the fees. You can see how this case differs from your case.

Good luck