In summary
He says state law gives him the right to turn his garage into an apartment. His HOA says it doesn’t. Who’s right?
Adam Hardesty insists he wanted to do everything by the book.
Before moving forward with his plans to convert the garage of his three-story condo into a ground-floor apartment, he canvassed local architects and engineers to make sure a kitchenette, a bedroom and a bathroom could all be packed safely and legally into just 373 square feet.
He pored over local zoning maps, checked with the city of Carlsbad and got himself a building permit.
He sought and received the blessing of many of his immediate neighbors.
He even emailed a planner at the state’s housing department to get his take on whether he was legally entitled to build what California law refers to as an “accessory dwelling unit.”
An unemployed project manager who has struggled to find work for more than a year, Hardesty had the time to do the research, the training to conduct it thoroughly and the financial rationale to turn his garage into a rental.
“To help offset the housing crisis and also provide affordable housing, but also to provide a revenue source for my family — why not?” he said.
What he didn’t count on was opposition from his own homeowners association — if only because he’s also the HOA board vice president.
Hardesty floated the idea to his fellow board members late last summer. What followed was months of sternly worded legal missives, deadlocked negotiations and a heated battle over property rights that has pitted neighbor against neighbor across the Mystic Point Homeowners Association’s bucolic hillside subdivision along the coast north of San Diego.
At the center of the debate is among the most divisive questions in California politics: Who has the final say about what gets built where?
The California Legislature has been on a decade-long tear trying to make it harder for locals to say “no” to new housing. They’ve passed bills that force cities and counties to plan for more residential density and approve projects without conditions, and that punish governments that don’t cooperate. A raft of California laws on accessory dwelling units (ADUs) have been particularly aggressive in stripping locals of their regulatory say-so.
It’s not always clear how homeowners associations, the quasi-private governments that set and enforce neighborhood rules across so much of suburban California, fit into this new policy landscape. Not all of the state’s pro-housing mandates apply to HOAs. Sometimes the laws are ambiguous on the question. And even when a state statute explicitly overrides any contrary association covenants or restrictions, there’s no obvious enforcement body that stands at the ready to ensure the law is followed. When disagreements surface, they can get hashed out in court.
That’s despite the fact that homes governed by these associations have been one of the fastest growing segments of the national housing supply for decades. More than one-third of California’s housing stock, home to more than 14 million people, is regulated by a homeowners association, condo or residential co-op board, according to the Foundation for Community Association Research.
This has all turned the humble, frequently derided HOA into one of the last lines of defense in the battle for local control in California.
The fabric of the community
The pushback that Hardesty received was gentle at first.
The garage conversion would be “precedent setting” for the Mystic Point Homeowners Association, board member Mike Cartabianco stressed to Hardesty in a text message from late August.
An influx of ADUs and a loss of garages could change the fabric of the community, worsen the parking situation and undercut the very reason “why we and other(s) bought here,” he said. Though he wasn’t categorically against the proposal, all of this made the plan “an uphill battle.” Cartabianco suggested that Hardesty consider “scaling down” the project, perhaps by removing the kitchenette, or by drawing upon the equity in his condo to meet his financial needs.
Hardesty persisted, sending a letter of intent to the entire board. Official opposition soon followed.
Adam Flury, an attorney hired by the association, advised the board in an email to “absolutely deny” the request as a violation of the board’s governing documents. Hardesty responded, politely but firmly, that he would be moving ahead anyway. “Rest assured, this is coming down the pike and I would love for you all to participate in this project with me,” he wrote in an email.
Two weeks later he received a cease-and-desist letter. It warned Hardesty that he ran the risk of exposing himself “to legal consequences and unnecessary expense” if he didn’t let up.
In an email response to CalMatters, Flury said that the “association does not comment on potential legal matters.” Neither Cartabianco nor HOA President Shauna Bligh responded to repeated efforts to speak with them.
The Mystic Point ADU dispute is “ripe for litigation,” said Marco Gonzalez, an environmental and land use lawyer whom Hardesty hired to respond to the HOA’s cease and desist letter. “But you gotta have a homeowner with deep enough pockets and the risk profile to take it to the mat.”
Hardesty, who is still without a steady job and claims to have already spent upward of $8,000 of his savings on the project, said he didn’t have deep enough pockets to keep paying Gonzalez.
For now, he is focused on construction. This month, he broke ground and began gutting his garage — without the HOA’s permission or apparent knowledge.
The price tag of fewer neighbors
A homeowners association occupies the blurry line that separates private club from hyper-local government.
Though their legal status is usually nonprofit, with each homeowner acting as a paying member, by enforcing rules on what people can build on their own property, they assume a role comparable to a town’s planning-and-building department.
Strict rules about development may be part of their appeal: A nationwide study of HOAs from 2019 found that homes regulated by associations are, on average, worth $13,500 more than comparable homes outside an HOA’s jurisdiction. But that premium is even higher in places with loose controls on development. In other words, people are often willing to pay more to live in an HOA, at least in part, to buy the peace of mind that an apartment building won’t unexpectedly pop up on their block.
A central function of HOAs is to “maintain property values,” said Ron Cheung, an Oberlin College economist, who has conducted similar research on homeowners associations. “The way they do this is, one, by providing better public services than the city does and, two, by enforcing regulations on things — like the appearance of the home and the behavior of the residents and on what you can build and can’t build.”
In 2019, the California Legislature passed a law to keep HOAs from enforcing such regulations on accessory dwelling units. The bill, authored by former Burbank Democratic Assemblymember Laura Friedman, voided any association rule that “effectively prohibits or unreasonably restricts” the construction of ADUs.
That’s the law that Hardesty says gives him the right to ignore his board’s legal warnings. The rub is that the law applies to parcels of land that are “zoned for single-family residential use.”
Hardesty lives in a condominium six-plex.
According to Gonzalez, Hardesty’s former attorney, the homeowners association’s lawyer argued that because the zoning map allows for more than just single-family homes, Hardesty’s parcel is not “zoned for single-family residential use” and therefore the law doesn’t apply. What applies instead is the association’s ban on using garages for anything other than cars.
Gonzalez countered that because single-family homes are one of many uses allowed in the subdevelopment, the parcel is still, in fact, “zoned for single-family residential use,” even if it’s zoned for other things too, and that the garage rule is an effective ADU prohibition barred by the 2019 law.
Friedman, now a member of Congress, did not respond to CalMatters’ questions about the law’s intent.
HOAs vs ADUs: A “muddy” area of law
Hardesty’s interpretation of state law is shared by at least one analyst at the state’s housing department.
After Hardesty wrote to the department’s ADU team, David Barboza, a staff housing policy specialist at the California Department of Housing and Community Development, wrote back. “I don’t agree that State ADU Law is inapplicable to condo developments,” he told Hardesty. Because “single-family residences are a permitted use” on his property, the pro-ADU law likely applies.
But that interpretation doesn’t necessarily have the force of law and, in any case, the department has no plans to get involved in these types of disputes.
If it were Carlsbad’s planning department telling Hardesty not to convert his garage, that would fall under the state housing department’s regulatory authority. But HOAs are different, said department spokesperson Jennifer Hanson.
“We do not have the ability to take enforcement actions directed at HOAs,” she said.
Jeanne Grove, a real-estate lawyer with the law firm Nixon Peabody who regularly represents HOAs, said the legal question is “really muddy for homeowners associations” and that it’s not always clear where their contractual responsibilities to enforce their own rules end and state housing law begins.
Gonzalez, Hardesty’s former lawyer, said he isn’t surprised by the association’s position. “HOA attorneys are pre-programmed to say ‘no,’” he said. But though the debate rests on a relatively narrow grammatical question, it’s an important one for a state in the throes of a chronic housing shortage and affordability crisis, he added.
“There are, I would, expect hundreds, if not thousands, of condo homeowners who have no idea they might be able to convert their garage,” said Gonzalez.
Some of them might even be Hardesty’s neighbors.
Standing in the shared driveway of Hardesty’s condo-plex, Barbara Malone, who lives just up the street, said she was initially skeptical when Adam told her about the project. Now she’s inspired.
Malone is 75 and has 10 grandchildren and two great-grandchildren. “That’s why I have no money,” she said. She works at Lowe’s Home Improvement part time to supplement her modest 401k and Social Security payments. Years ago, she carpeted over her garage, turning it into a playroom. But she said the prospect of converting it into a source of passive income would be life-changing.
“For me, it would be a way that I could quit working, I think, if I could put one of these in my garage,” she said. “I would like to do the same thing.”
She said she’s already reached out to her immediate neighbors and received their blessing to break ground.
Adriana Heldiz contributed to this story.