Our firm has received several questions regarding recent changes in Phoenix and Tucson Law which expand the options for owners to build Alternative or Accessory Dwelling Units (ADUs) or casitas on their lots. An ADU is an independent housing unit that shares a lot with a primary residence. ADUs typically have their own separate living space, kitchen area, and external entrance. They can be attached or detached from the primary dwelling and are often praised as a solution to address shortages for affordable housing as the costs to rent or purchase a home have increased across the country.
ADUs in Arizona
Both the City of Phoenix and the City of Tucson have amended ordinances to allow ADUs on lots that are zoned and used as single-family residences. If an owner wishes to construct an ADU on their lot, they should first check the local ordinances and zoning restrictions to see if or in what manner ADUs are allowed. Further, city and local ordinances likely place parameters around the construction of ADUs such as setback requirements.
ADUs within your Association
If their city and local codes and ordinances allow an ADU, a homeowner within an Association is still subject to the Associations Governing Documents. According to the Community Association Institute, city ordinances allowing ADUs do not supersede HOA rules that prohibit or restrict them. Since ADUs can often be used as an additional rental property for additional income, an Association’s rules regarding rentals will also apply to the ADUs.
Most HOAs require application and approval from an Architectural Design Committee for architectural changes on the Lot. In that circumstance, the owner would then be responsible for ensuring that any ADU is constructed in accordance with the Association’s design guidelines. These guidelines can include building envelopes that are limited to a certain percentage of the lot, restricting the appearance or size of additional structures, or prohibiting ADUs all together.
The state and city-wide ordinances that allow ADUs do not restrict the Association’s ability to uphold their design guidelines. Case law, however, makes it clear that, if ADUs are permitted in the Association, the Association cannot deny a request to construct an ADU without a legitimate reason. The Association and the Design Review Committees are obliged to act reasonably in deciding on all requests, including any requests received to build an ADU on a lot. If the design guidelines prohibit ADUs, then it is more than reasonable for the Association to deny the request. However, if the design guidelines allow for ADUs but the Association disfavors them, then the Design Review Committee can only reject the request if there is something about the request that otherwise violates the design guidelines.
The takeaway for Associations in Arizona is that they can still regulate ADUs within the Association. Similar with other aspects of homeownership, such as paint color or landscape design, HOAs are able to place restrictions or prohibitions on the construction of ADUs within their Association, regardless of what is allowed by the city ordinance where the HOA is located.
