Law that ended single-family zoning in CA struck down for at least five CA cities--and maybe SJ, too
Remember all the local shenanigans over SB9 and so-called "Opportunity Housing" in SJ? Turns out it may be unconstitutional and dead in the water, at least for charter cities. CityWatch LA and Westside Current cover the blockbuster court ruling, below.
CityWatch LA:
In a ruling remarkable for its clear-headed logic, a Los Angeles County judge last week declared unconstitutional California Senate Bill 9 (SB 9), the 2021 law that deregulated residential real estate by ending single-family zoning across the state of California.
The judge reached three conclusions:
First, that there’s no nexus, or direct connection, between eliminating single-family zoning and producing affordable housing (below market-rate housing), because SB 9 includes no requirement that new housing be rented or sold at below market rates.
Second, that even under a more expansive reading of the law to mean “housing that’s affordable” versus affordable housing per se, SB 9 also falls short. The judge cites evidence suggesting the opposite may actually be true; that is, the law can lead to the creation of new housing that is less affordable (above market rates) as a result of gentrification.
Third, that because the law is so broadly drawn, it unlawfully intrudes on California charter cities’ constitutional right to control their own municipal affairs including land use. (There are about 120 charter cities in California, including Los Angeles and San Diego.) Thus, SB 9 is unconstitutional.
The judge’s ruling, which you can read here, was entirely foreseeable. SB 9 was billed by its backers as an affordable housing mechanism, but that was false advertising. It’s just another statewide housing mandate.
Certainly the five charter cities that brought the litigation (Redondo Beach, Carson, Torrance, Whittier and Del Mar) understood as much, as did many of us across the state who opposed the legislation. Notably, the City Council of Los Angeles voted to oppose the law, as did the League of California Cities.
At the end of the day, single-family zoning does not have to be ended, or home rule evaded, to meet the state’s housing production challenges. We can have truly affordable housing, be it low or middle-income, everywhere under other existing laws and regulations. In fact, approved housing elements and community plans already include capacity for more than two million additional housing units across the state. In other words, current zoning already enables over two million more units by right. The answer is right under our nose.
The radical housing productionists who believe in building anything anywhere will no doubt call last week’s court decision illogical and irrational. Those truly drunk on their ideology will be apoplectic. But to those of us who believe in land-use planning, zoning and the principle of home rule as enshrined in the California Constitution, the judge’s ruling is as reasonable as they come.
Read the whole thing here.
Westside Current:
A controversial housing law that would have densified single-family, residential neighborhoods has been ruled unconstitutional and unenforceable for some cities.
SB9, or the California Housing Opportunity and More Efficiency (HOME) Act, mandated cities permit an additional residential unit on parcels zoned for single-dwelling units. It allowed for a total of two residential units in such zones, excluding accessory dwelling units (ADUs). Enacted in September 2021, the law took effect statewide on January 1, 2022. Locally, SB9 applied solely to properties in the R1 (Single-Unit Residential) and OP1 (Ocean Park Single-Unit Residential) Zones. Certain exemptions prevented displacement of current residents, including properties within hazard zones, historic districts, containing price-controlled units, subject to recent Ellis Act removal, or necessitating the removal of over 25% of existing structure walls.
The law was implemented across every municipality in the state but California has multiple kinds of municipal agency. A charter city, like Santa Monica, derives its authority from a city charter, not the general law. Doing so provides it with additional responsibilities and rights, including a clause that requires state laws to pass a four-point test when they are accused of overriding local control.
Opponents of SB9 said the law violated the rights of charter cities by failing to show it addressed a statewide cause and that it interfered with local rights more than was necessary. The courts agreed this week.
The lawsuit’s proponents defined the applicable statewide concern as ensuring affordable housing. While the California Attorney General’s office said the statewide concern which SB 9 addressed was the shortage of housing as a whole in California, the court said the specific language in the law did not support that statement saying the law’s intent to promote affordable housing was unambiguous.
“The Legislature plainly declared that the statewide concern addressed by SB 9 is “ensuring access to affordable housing.” The Court presumes that the Legislature meant to addresaffordable housing because that is what the Legislature said, not some other statewide concern,” said the ruling.
The two sides also disagreed over the definition of “affordable.”
According to petitioners, “affordable” referred to below market-rate housing. According to respondents, it can refer to the promotion of housing affordability at all income levels in the short term and subsequent promotion of affordability at lower income levels by increasing overall housing availability. In again siding with the petitioners, the court said a common acceptance of the term meant below market housing.
With the terms defined, the Court then said there’s no evidence to support the assertion that the upzoning permitted by SB 9 would have any impact on below-market rate housing.
“With respect to the declared statewide concern of ensuring access to affordable housing, the broad requirement of ministerial approval of duplexes and urban lot splits does not contain any connection to affordable housing,” said the ruling. “Under SB 9, charter cities would be required to approve additional housing development in single-family zoned land, but any additional housing resulting therefrom would not necessarily be below market rate or accessible to people with lower financial means, especially in economically prosperous cities.”
The Court said that in failing to meet two of the four required tests, the law should be thrown out.
“Accordingly, the Court finds that SB 9 is neither reasonably related to ensuring access to affordable housing nor narrowly tailored to avoid unnecessary interference in local governance. SB 9 is therefore unconstitutional as violative of the ‘home rule’ doctrine,” said the ruling.
Redondo Beach, Carson, Torrance, Whittier and Del Mar brought the lawsuit but others had voiced support. While Santa Monica was not a party to the case, the council did formally oppose SB 9.
Read the whole thing here.
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