Is Your Casita Illegal?

In 2016, Santa Fe County passed the Sustainable Land Development Code (SLDC), a zoning law that sets limits on how all properties in the County can be used and developed. The SLDC is over 700 pages long, and is enforced by the Land Use department of the county’s Growth Management Division.

Did you know Santa Fe County has only permitted casitas since 2016?

According to Penny Ellis-Green, Director of Growth Management, the County did NOT permit “Accessory Dwelling Units” (ADUs) – what we call casitas or guest houses – prior to the 2016 SLDC. That may surprise you, because so many properties in Santa Fe County have casitas and studios. We have a long tradition of building “compounds” to enable multigenerational living, and casitas are a beloved part of our history. 

But before 2016 - according to Penny Ellis Green, the County’s zoning laws did not recognize casitas, guest houses or any other dwellings other than homes. If you bought a property that has a casita or studio built before 2016, there is a good chance the casita is illegal.

Because, until 2016, the County did not issue permits for ADUs. That means your casita must comply with the current requirements for ADUs retroactively, even if it was built long before those requirements were even written.

Most casitas built before 2016 are illegal.  

Homeowners are being told by Land Use officials that their casitas are illegal, because they do not meet current SLDC requirements for ADUs. Even if you bought a property with a casita already on it, and you have made no changes to your property, you can be told your casita is illegal.

If you go to the County offices to get a permit for a new roof, solar panels, an addition or renovation to your home, you are at risk. Land Use officials will pull up an aerial image of your entire property and examine it for retroactive violations of the SLDC. If you have a casita that doesn’t comply with SLDC requirements, you could be told it is illegal.

Take this 10-point Test to find out if your casita is illegal

1. Do you have more than one casita/ADU/studio on your 10 acres or less property?

2. Is any part of your casita within 25-100 feet from the road (depending on local rules)?

3. Is your casita accessed from a different driveway or curb cut than the main house?

4. Does your casita have separate water or electric service from the main house?

5. Does your casita use a different sewer/septic system than the main house?

6. Does your casita have a second story or loft?

7. Is your casita’s roof higher than the roof of the main house?

8. Is your casita more than half the size of your primary residence?

9. Does the heated area of your casita exceed 1,400 square feet?

10. Does the outside of your casita look different from your primary residence?

If you answered “YES” to just ONE of the questions above, your casita is illegal.

The requirements for Accessory Dwelling Units (ADUs) are explained in Section 10.4 of the SLDC. You can read the SLDC rules here. 

You can also watch Growth Management Director Penny Ellis-Green explain the requirements during a presentation to the Santa Fe County Board of Commissioners on YouTube here (fast forward to 1:15).

What happens if the County tells you your casita  is illegal?

Once the County is determines that you have an illegal casita, they will require you to make changes to bring your property into full compliance. Failure to make those changes can result in fines of $300/day and even jail time.

You can apply for a variance, of course.  But you won’t get it.

Variances for illegal casitas are routinely denied.

Land Use officials routinely deny variances for “illegal ADUs” that fail to meet the new SLDC requirements, even if the casita was built long before 2016 and even if you bought the property not knowing the casita did not comply with new zoning laws.

At one recent hearing, one member of the Planning Commission said that they have set a precedent that no variances for existing structures will ever be granted, because the Planning Commission has denied them in the past.

“We can’t be making decisions that apply to one applicant and then have another applicant come in and then grant this variance request under similar circumstances.”

- Rhea Serna, Santa Fe County Planning Commissioner

So, what happens if your variance is denied?

You can be forced to rebuild or tear down your casita

Homeowners are being told they have to rebuild their casitas to meet the new SLDC requirements, or tear them down.

One homeowner was told he had two options to bring his property into compliance:

1. Build an addition that will add at least 1,400 square feet to his two-story casita and turn it into his main house, and make his one-story home his new casita.

2. Tear the two-story casita down.

He bought his property with the existing structures  - that are now retroactively "illegal".

The Sustainable Land Development Code was created to help protect Santa Fe County’s precious and limited water resources. And yet Land Use officials are telling homeowners they must add multiple bedrooms and bathrooms to their casitas to make them legal?

Does that make any sense to you?

If you think the County is going too far enforcing 2016 SLDC requirements retroactively on casitas and other buildings that were built long before the SLDC was passed, you are not alone. Homeowners of Santa Fe County are fighting to protect your property rights and force the County to change its unfair, unjust zoning laws.

Help us fight for your property rights.

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