Larkfield resident considers lawsuit over Mark West Estates ‘granny unit’ ban

Nick Moen wants his rebuilt Larkfield home to include a granny unit. Problem is, his homeowners association outlawed them in January. They're headed to mediation in a case that could have implications across the state.|

Nick Moen has a plan for his fire-scarred property in Sonoma County that suits his family’s needs and would result in exactly the kind of housing that local and state officials want developed.

Moen wants to rebuild his Larkfield home, one of the nearly 5,300 Sonoma County homes destroyed in the October fires. And he wants to add a granny unit, with its own kitchen, bathroom and living quarters, on his property for his mother-in-law.

But that’s where his plan has been stymied: A majority of residents in the homeowners’ association for Mark West Estates voted in January to implement a full ban of all accessory dwelling units, or ADUs. In the coming weeks, Moen has a mediation hearing with the homeowners’ association.

His case could have broader implications across the state, as homeowners seek to leverage elected officials’ push for more housing against the limits proposed by HOAs, which set rules that apply to an estimated 6 million Californians.

Moen, a 36-year-old project manager for a mechanical contractor and father of two, admits he knew the Mark West Estates covenants were silent on whether a granny unit was allowed in his neighborhood. He acknowledges the covenants weren’t specific, but with plenty of space on the 0.39-acre parcel to comply with county regulations, he plotted a strategy for eventually making his argument to the homeowners’ association.

“I knew there was going to be some kind of challenge,” Moen said. “I wasn’t planning on doing it now so publicly. And I didn’t know I’d run into a cement wall.”

Flexibility in rules

The month before the homeowners association blocked granny units outright, the Santa Rosa City Council relaxed restrictions on accessory dwelling units, as part of an attempt to create additional, lower-cost housing and fuel the rebuilding effort. Permit fees were waived for units 750 square feet and smaller, and reduced on those reaching the maximum 1,200 square feet, among other measures.

But the unincorporated area of Larkfield where the Moens live is governed by Sonoma County.

The Sonoma County Board of Supervisors has a lofty goal of building 30,000 new homes in the next five years. And earlier this month, supervisors updated policies to offer homeowners more opportunity for building granny units.

The new rules increase the secondary unit’s maximum size from 1,000 square feet to ?1,200 square feet, reduce permit fees, and suspend their collection until near occupancy, in addition to decreasing the amount of land required to obtain a permit.

“We’re trying to … provide flexibility and lessen rules, and make it affordable,” Supervisor Shirlee Zane said in an interview. “A lot of people being underinsured can afford to build an ADU, but might not have the ability currently to build their whole house in terms of the square footage. So we want to find ways to help people be able to stay here and rebuild their lives.”

The loosened rules follow a push at the state level, after ?Gov. Jerry Brown signed several bills the past two years granting homeowners easier access to building permits for secondary units and reducing local obstacles such as parking requirements.

Together, the moves are part of a widening campaign to address the state’s housing crisis, with an estimated 1.8 million homes needed by 2025 to keep pace with population growth, according to the California Department of Housing and Community Development.

Of the current 13 million homes, about 9 million are single-family homes, according to HCD.

State Sen. Bob Wieckowski, D-Fremont, who authored two of the granny-unit bills signed by Gov. Brown and has a third working its way through committee, said the measures are meant to ease the development prospects for smaller units, which he said are more vital than ever for areas of California impacted by wildfires.

“I hope it’s a godsend for people who have been displaced from the fires,” said Wieckowski. “The idea is that they can be built relatively quickly. It wouldn’t take that long for a thousand homeowners in the Napa, Sonoma area to construct one, make a garage conversion or subdivide houses. We want to empower the homeowners to remodel any existing real property, build a unit for grandmama or a cottage in the backyard, and without the excessive costs of government.”

HOA versus granny units

Mark West Estates has more than 190 upper-end homes, none with existing granny units. Moen’s destroyed four-bedroom, three-bath home on Pacific Heights Drive backs up to John B. Riebli Elementary and was listed at more than $800,000 on Zillow.

The architectural guidelines approved in January by Mark West Estates’ Homeowners’ Association Board determined that granny units “do not maintain the character of the development.” Their prohibition, according to the document, aimed “to preserve Mark West Estates as a community of single-family homes.”

Ellen Beggs, president of the Mark West Estates’ Homeowners’ Association Board, declined Thursday to discuss the decision or the vote. She said the board doesn’t have an appointed spokesperson and that several days’ notice was not enough time to provide comment for a news story.

Some residents voted for the new guidelines to speed up the rebuilding process. Debating granny units would only create unwanted delays in the approval of guidelines, said Mike Holdner, who acts as Mark West Estates’ block captain on the countywide rebuild committee.

By last week, 125 of the community’s 178 houses are moving through approvals for rebuilds this year, according to Holdner.

“There were no ADUs in our neighborhood before, so this seems to be more of a continuation of the previous policy,” Holdner said. “I would build one if I had the opportunity … but, for me, it is all about priorities - needs and wants. I need a house, I want an ADU. House first, ADU later, if ever.”

‘A guaranteed fight’

There’s a legal question whether a homeowners’ association can create and enforce an outright ban on ADUs, according to housing law experts.

“What we’re witnessing is a tug of war between private property rights and what the association says the homeowner can do or he can’t do with the property,” said Marjorie Murray, president and CEO of Center for California Homeowner Association Law. “That’s a guaranteed fight.”

The Oakland-based nonprofit educates homeowners and governments on their rights and responsibilities related to community developments. Murray said lawsuits between homeowners and neighborhood associations are not uncommon and include court cases over outbuildings such as gazebos and raised decks. She was unfamiliar with any pending challenge over granny units.

A 1985 state law established the rights and legal authority of HOAs in California, and court rulings have established their authority to establish rules governing land-use within their boundaries, provided they don’t conflict with state or federal law.

“An association’s rule-making authority is not omnipotent,” Murray said. “They are not all-powerful, although that’s often how an association presents itself. The state of California is promoting accessory dwelling units, and so are the local governments. Who is this homeowners’ association to come along and say, ‘We’re not going to do it?’”

Pros and cons

Casey Edmondson, an attorney on the Santa Rosa Planning Commission, said based on past HOA-homeowner standoffs, a legal argument could be made that a wholesale restriction on such housing - particularly in the wake of October’s destructive fires - may meet the bar of being unreasonable.

“We’re seeing people victimized once by the fires, and all they want to do is figure out a way to afford to live in Santa Rosa for the rest of their lives or however long they want,” said Edmondson, who voted in favor of the city’s new housing policies, advancing them to the City Council. “ADUs are one of the best policies developed for increasing the supply of affordable housing without having many negative effects on quality of life. It’s discreet, affordable housing folded into existing neighborhoods.”

Opponents argue they increase traffic and parking issues, and voice concerns they’ll be converted into short-term rentals for visitors. Proponents, however, point to existing limits on such rentals, imposed to prevent Airbnb and VRBO customers from invading neighborhoods. They also say new long-term rental properties help owners finance mortgages and other expenses while providing options for owners who may want to move into the smaller units and rent their primary home.

“As members of a community, we should be doing our fair share,” said Sen. Wieckowski. “It’s something where you want to lead by example. Having a homeowners’ association affirmatively deny them and it’s just zero, that seems not especially neighborly.”

Moen and a small group of other Mark West Estates property owners who also want to rebuild with a granny unit are scheduled for an upcoming mediation hearing with their homeowners’ association board. He said if that doesn’t result in at least a case-by-case review of each homeowner’s situation, he and his attorney would consider a lawsuit.

“We’re getting close to that,” said Moen. “It’s just the absolute restriction where it doesn’t fit in my book. Why are you making things more stringent for what people can rebuild back to, and you’re making it harder on them? Would a judge look at that and go, ‘OK, you guys should not be doing this. You’re making it hard to get back in people’s homes, you need to stop.’ That is definitely where we are right now.

“It’s a fight worth fighting,” he said.

You can reach Staff Writer Kevin Fixler at 707-521-5336 or at On Twitter @kfixler.

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