A controversial housing law that eliminated single-family home zoning across California has been ruled unconstitutional by a Los Angeles County judge — however the state is prone to appeal the narrow decision.
Passed in 2021, SB 9 allows single-family homeowners to divide their lots in two and construct two homes on each lot – allowing as much as 4 units to be built on each lot, which were previously only intended for a single home.
Five Southern California cities — Redondo Beach, Carson, Torrance, and Whittier and Del Mar — sued the state in 2022, saying the law was unconstitutional since it interfered with their local authority over land use and zoning.
The ruling issued Monday by the Los Angeles County Superior Court judge means SB 9 can’t be utilized in these five cities. It stays unclear whether the law can even remain valid in other cities.
The attorney general's office is reviewing the choice and “will consider all options to defend SB 9,” it said in an announcement to this news organization.
Housing advocates fear the court ruling kills a key piece of laws geared toward increasing population density across the state.
“The signs that this particular court ruling will upend future SB 9 processing are imminent,” said Rafa Sonnenfeld, policy director for the housing group YIMBY Action.
Chris Elmendorf, a law professor at UC Davis, called it “the most ridiculous opinion a court has ever issued in a housing-related case.”
At the guts of the case is local authority and the query of what gives the state the suitable to intervene. In California, the Constitution requires that state laws impeding local control of cities must show an inexpensive connection between the state legislature's stated intent and the design of the law.
In the case of SB 9, the stated intent was to enhance housing affordability.
The prevailing theory in housing policy lately is that the state's decades-long undersupply of housing has driven up the price of rent and homeownership, and that constructing more housing—each market-rate and subsidized—will improve affordability. This was reflected within the draft of SB 9, which allows more homes to be built through property divisions. Unlike federally subsidized reasonably priced housing or government restrictions that cap rent, the reasonably priced housing created by SB 9 could be what housing policymakers call “naturally occurring.”
But Judge Curtis Kin ruled that the legislature's intent — housing affordability — was inconsistent with the draft. Because SB 9 doesn’t require that any of the units be actually constructed below market rate, it was not “appropriately connected and sufficiently narrowly tailored” to make sure access to reasonably priced housing—and subsequently unconstitutional.
The judge's opinion reflected critics' doubts that greater supply actually increases affordability.
“The decision confirms that most of these so-called housing affordability laws are a sham and will not result in much-needed affordable housing,” said Susan Candell, a Lafayette city councilwoman and advocate for the Our Neighborhood Voices initiative, which seeks it to return local land use decisions to cities.
The opinion is a victory for CalCities, a bunch that advocates on behalf of the state's cities. which filed an amicus temporary arguing that SB 9 has stripped cities of their discretion in determining the placement, density and site characteristics of housing without ensuring the development of cheaper housing units.
But housing advocates say the judge's ruling relies too heavily on a narrow definition of housing affordability.
“SB 9 enables housing affordability by increasing the supply of small, entry-level homes, which has the chain reaction effect of making all housing more affordable,” said Ben Bear, CEO of BuildCasa, a startup that helps homeowners sell their properties under SB 9 to separate up and sell to developers. “We have seen that SB 9 units can sell for 30-50% less per unit than other single-family homes due to the higher density.”
Advocates hope lawmakers will revive one SB 9 cleanup bill proposed last yr from Senator Toni Atkins, a Democrat from San Diego, who could also help solve this case.
Even Candell acknowledged that simply cleansing up SB 9 could invalidate the Los Angeles court's decision.
“We lost the war,” she said. “We can’t undo all of these laws one by one.”
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