A Los Angeles judge has declared SB 9 unconstitutional for charter cities, saying that it cannot guarantee that new housing created will be “affordable” and “below market” and therefore it does not align with the law’s rationale for overriding local powers.

The problem, Los Angeles County Superior Court Judge Curtis Kin said, is that the law relied on the state’s classification of affordable housing as a matter of statewide concern, not a lack of housing supply – which the state has also classified as a matter of statewide concern but which SB 9 did not reference. The ruling only applies to charter cities, which have more home rule power than general-law cities.

In a footnote, Kin said, “The Court recognizes the provisions of SB 9 might support a finding that SB 9 addresses the shortfall in housing generally … SB 9 takes away the ability of local governments to impede the state's goal of increasing housing production to address the shortage in housing. But, the Court declines to decide whether SB 9's provisions permissibly address some other concern (housing supply) not identified by the Legislature in enacting SB 9.

Kin is the same judge who late last year suspending the City of Beverly Hills’ permitting power because he found the city’s housing element “deficient”. (CP&DR’s coverage of the Beverly Hills case can be found here.)

SB 9, which went into effect in 2022, essentially did away with binding single-family zoning in most parts of California. The law permits landowners build up to four units on their single-family parcel by to splitting their parcels in two and build two units on each of the resulting parcels, all by ministerial action. The bill was very controversial during legislative debate in 2021 and has received a lot of national publicity. However, its actual effect has been limited. Relatively few single-family parcel owners have chosen to go the SB 9 route. The general consensus is most single-family homeowners find it easier to add an accessory dwelling unit on the property, an action that is also available by ministerial approval thanks to a different state law.

Decades ago, California declared that both a shortage of housing and a lack of affordable housing as matters of statewide concern, thereby allowing the state to override the California Constitution’s guarantee of local home rule. SB 9, however, mentioned only “affordable housing” and not “a lack of housing supply” as the justification for interfering with home rule. This was the basis of the constitutional challenge brought by several cities led by Redondo Beach. Other cities involved in the lawsuit include Carson, Cerritos, Torrance, and Whittier.

In his ruling, Kin defined “affordable housing” as deed-restricted below-market-rate housing. Because SB 9 does not require any of the resulting housing units to be dedicated as affordable, he concluded, it does not further the affordable housing goal stated in the law as the rationale for the local override.

In its defense of SB 9, the state attorney general’s office tried to argue that simply because SB 9 uses affordable housing as the stated rationale, that doesn’t preclude also using the shortage of housing supply as a rationale as well.

But Kin didn’t buy the argument – and to back up his position, he contrasted SB 9 with other state override bills such as SB 423, which was passed last year as a followup to SB 35. SB 423 allows some housing projects to be approved by ministerial action but specifies that units must be deed-restricted affordable.

“Through the enactment of SB 423,” he wrote, “the Legislature requires developers who seek to avail themselves of a streamlined, ministerial approval process for their development to record a covenant requiring any lower or moderate-income housing units to remain available at affordable prices for specified periods of time.

“By contrast,” he added,” SB 9 contains no similar provision to require, promote, or incentivize dwelling units within single-family residential zones or on subdivided urban lots to be affordable or designated as affordable. SB 423 also amended SB 9 to allow four units to be built on single-family parcels in California but it did not otherwise require any development resulting from ministerial approval of a subdivision to be available at below market-rate levels.”

The Attorney General's Office attempted to back up its case with a deposition from Melinda Coy, the head of the Housing Accountability Unit at the Department of Housing & Community Development, who addressed the question of how SB 9 might help solve the housing problem in California. But Kin was not persuaded, sticking closely to the idea that "affordable housing" means below-market deed restricted housing.

"Coy's declaration supports a finding that, at best, an increase in housing development may slow or stop the rise in housing prices," Kin wrote. "But Coy never states that the removal of barriers to housing development through enactment of sB 9 would lead to housing that is below market rate and affordable."

The Case:

City of Redondo Beach et. al. v. Bonta, Los Angeles County Superior Court No. 22STCP01143

 (filed April 22, 2024)

The Lawyers:

For Redondo Beach and other plaintiffs: Pam Lee, Aleshire & Wynder, plee@awattorneys.com

For California Attorney General’s Office: Deputy Attorney General, kevin.kelly@doj.ca.gov