A controversial housing law that would have densified single-family, residential neighborhoods has been ruled unconstitutional and unenforceable for some cities including Santa Monica.
SB 9, 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 two kinds of city. 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 SB 9 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 address affordable 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.
SB 9 author Senator Toni G. Atkins was critical of the ruling.
“The superior court’s decision on SB 9 is very disappointing and sadly misguided considering the vast inequalities between California communities created by decades of inequitable housing and land-use policy,” she said in a statement. “The assertion by NIMBY city governments that SB 9 is only about subsidized housing is a stretch at best. The goal of SB 9 has always been to increase equity and accessibility in our neighborhoods while growing our housing supply and production across the state. In the last several years, the Legislature has taken a multi-faceted approach in tackling the housing crisis at every affordability level. I remain committed to addressing the housing shortage and finding solutions to remedy any loopholes biased city governments might utilize to block options for Californians.”
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.
In February 2021, City Council voted 5-1 to send a letter to Senator Atkins, formally opposing the bill. Councilmembers were split in their reasons for criticizing the bill with some saying they supported densification but were opposed to the lack of a requirement to construct affordable housing. Others opposed the actual densification, regardless of cost, saying it would destroy residential neighborhoods.
Councilmember Gleam Davis was the sole proponent of the bill and believed that given the severity of the state’s housing crisis it would be a helpful tool to build more units.
Overall use of the law was low across the state with several studies concluding only a couple of hundred units were built under SB 9. According to the City of Santa Monica, only two applications were filed locally.
- Editor’s Note: While the ruling limits the State’s ability to enforce SB 9, local ordinances that were passed incorporating SB 9’s rules are not automatically undermined or revoked by the ruling. Santa Monica, like most charter cities, did incorporate SB 9 into local zoning rules and it would be up to the Council to revise those rules.
matt@smdp.com