Homeowner sues Los Altos, says it’s too difficult to get a granny unit approved

The black dot indicates the location of the house where the owner has been trying to get an accessory dwelling unit approved by the city of Los Altos.

Daily Post Staff Writer

A Palo Alto lawyer is suing Los Altos because the city won’t let him add an accessory dwelling unit, or granny unit, to his house.

Peter Brewer, of Brewer Oxford & Pedersen LLP, is representing himself in the lawsuit.

He said Los Altos is engaging in “flagrant NIMBYism” by preventing people from building granny units.

Brewer says he applied to build an 800-square-foot granny unit for his home at 49 Lyell St. in August 2018. City planners said that was too big, so he reduced the size to 624 square feet.

Even though Brewer reduced the size, the unit was rejected by the city’s design review commission in February 2019.

His appeal to council was denied, so he sued. “(Los Altos) seems to do everything in their power to stop the development of ADUs,” said Brewer. “The state considers ADUs to be an important solution to the housing crisis.”

City Attorney Chris Diaz did not respond to an emailed request for comment yesterday afternoon.


  1. The Los Altos ADU guidelines are easily found online. It’s a two page document. The size limit table makes it clear that a new detached unit can’t be more than 50% of the existing habitable floor area of the primary residence. According to Zillow, 49 Lyell is a 925 sq ft residence. 50% of 925 is 462.5. Even the second application is 200 sq ft over the max.

    • The issue is that the local ordinance is in violation of state laws intended to ease development of ADUs, by imposing restrictions not allowed under state law.

      • According to California law as of January 1, a homeowner is entitled to build an 800 sq foot ADU, provided it is no closer than 4 feet to side and rear property lines, and no taller than 16 feet. The city’s handouts are out of date and not in compliance with the law.

        When I went to the Planning Department a couple of months ago to inquire about how they planned to update their handouts to conform with the new state law, they hemmed and hawed. They were unable to tell me what I would have to do to get an ADU approved, if I submitted in January of 2020.

      • Dirk, You are exactly correct. State law, Ca. Govt. Code § 65852.2 provides that municipalities (cities) may not pass ordinances that are more restrictive than that statute, and any such ordinances are void. That State law says, “(iv) The floorspace of an attached ADU shall not exceed 50 percent of the primary dwelling living area or 1,200 square feet. (v) The floorspace for a detached ADU shall not exceed 1,200 square feet.” [NOTE: Distinction between attached and detached. Detached limited to 1,200 sq. ft. without regard to size of main dwelling]. The Los Altos ordinance fails to make the same distinction and limits ALL ADUs to not more than 50% of the main dwelling. More restrictive, therefore illegal and void. See also the sagacious comment by Jerry Infeld, below, very true!

  2. Zoning ordinance makes no sense. If the main house is rebuilt larger then ADU is allowed? The only rule that should be applies the sum of all housing to lot size. This rule is defined and is applicable.

    • The rule that applies in the state of California is that any homeowner may build a detached ADU of up to 800 square feet, provided it is no higher than 16 feet and no closer to rear and side property lines than 4 feet.

  3. The 50% rule is ridiculous. There are houses down the block, on identical lots that are much bigger. That site can easily accommodate an extra unit of the size requested without harming the neighborhood.

  4. Who cares if he wants to add a granny unit, extension, or remodel completely. Private property cannot be private if the government is claiming rights to it’s usage. The problem isn’t with the size of his proposal, it’s that Los Altos has arbitrary laws limiting homeowners rights to develop their own property at all.

  5. These local municipalities are making life miserable for families trying to find a place to live. Every month of delay raises costs for residents in need of housing.

  6. If he hasn’t yet done so in calendar 2020, Brewer should walk right in to the Planning Desk today and resubmit the original 800 square foot plan. By the new state law [CA 65852.2(e)(1)(B), as David Baron writes] any homeowner is entitled by right to build an 800 square foot ADU on their property, provided it is no higher than 16 feet and is no closer than 4 feet to rear and side property lines. Other zoning ordinances, such as floor area ratio, no longer apply.

    Brewer would be entitled to a ministerial decision (no public meetings) in 60 days.

  7. PRA requests would confirm June 2 2017 Los Altos permitted an ADU at a property on Santa Rita Ave. The ADU is ON the side property line and less than 2 feet from the rear property line. Their pretext for this egregious fraud? “State Law requires it…” although State Law didn’t kick in until Jan 1 2018.

    On being challenged they redefined the permit as “Addition to accessory structure”, amended the Code June 2018 to eliminate side setback requirements,
    and issued an ADU permit for that expanded structure. Guess what? that permit was approved, the structure inspected and approved as an ADU all without requiring any additional construction.

    As they say, the Code in Los Altos is one thing for some, another for others. And that remains so because City staff and City managers make it so, and some members of City Council (expected to manage and oversee staff on residents’ behalf) allowed it to be so and keep it that way.

  8. On that note: a PRA request would also confirm March 2019 Los Altos permitted an ADU of a property on Peterson Court. In the front yard. As a condition for the permit Los Altos required the homeowner indemnify the City from any lawsuit (arising from the permit) in State or Federal Court.

    A homeowner being required by the City to indemnify it as a condition for a permit? Very very unusual and most extraordinary.

    If the permit was legal, why the need for indemnification?
    If the permit was not lawful how would indemnification by a property owner of the City help?

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