A controversial housing law that abolished single-family zoning across California has been ruled unconstitutional by a Los Angeles County judge — but the narrow ruling is likely to be appealed by the state.
Passed in 2021, SB 9 allows single-family homeowners to split their lots in two and build two homes on each lot — allowing up to four units in each lot previously zoned for just one.
Five Southern California cities — Redondo Beach, Carson, Torrance, and Whittier and Del Mar — sued the state in 2022, claiming the law was unconstitutional because it interfered with their local authority over land use and zoning.
The Los Angeles County Superior Court judge’s ruling, issued on Monday, means that SB 9 can’t be applied in these five cities. It remains unclear for now whether the law remains valid in other cities.
The attorney general’s office is reviewing the decision and “will consider all options in defense of SB 9,” it said in a statement to this news organization.
Housing advocates worry the court ruling chips away at a key piece of legislation intended to increase density around the state.
“The writing is on the wall for this particular court ruling to upend future SB 9 processing,” said Rafa Sonnenfeld, policy director at the pro-housing group YIMBY Action.
UC Davis law professor Chris Elmendorf called it “the most ridiculous opinion that any court has issued in a housing-related case.”
At the heart of the case is local authority and what gives the state the right to interfere. In California, the constitution requires that state laws impeding cities’ local control must demonstrate a reasonable relationship between the legislature’s stated intention and the design of the law.
In the case of SB 9, that stated intention was improving housing affordability.
The dominant theory in housing policy in recent years is that the state’s decades-long undersupply of housing has pushed up the cost of rent and homeownership, and that building more housing — both market-rate and subsidized — will improve affordability. That was reflected in SB 9’s design, which allows for more homes to be built via lot splits. In contrast to state-subsidized affordable housing or deed restrictions that cap rent, the affordable housing created through SB 9 would be what housing policymakers call “naturally occurring.”
But the judge, Curtis Kin, ruled that the legislature’s intention — housing affordability — didn’t match up with the design. Because SB 9 doesn’t require any of the units constructed to actually be below-market-rate, it was not “reasonably related and sufficiently narrowly tailored” to ensuring access to affordable housing — and therefore unconstitutional.
The judge’s opinion echoed critics’ doubts that increasing supply actually boosts affordability.
“The decision confirms that most of these so-called housing affordability laws are a sham, and won’t result in much-needed affordable housing,” said Susan Candell, a Lafayette city councilwoman and proponent of the Our Neighborhood Voices initiative, which seeks to return local land use decisions back to cities.
The opinion is a victory for CalCities, a group lobbying on behalf of the state’s cities, which submitted an amicus brief arguing that SB 9 has stripped cities of their discretion to determine the location, density, and site characteristics of housing without any ensuring the construction of more affordable housing units.
But pro-housing advocates say the judge’s ruling relies too much on a narrow definition of housing affordability.
“It’s clear that the legislature intended for ‘affordable housing’ to mean the naturally affordable housing that happens with more production,” Sonnenfeld said. “But the ambiguity over the phrase ‘affordable housing’ is unfortunately causing some confusion in the courts. That could be easily fixed by the legislature.”
“SB 9 enables housing affordability by increasing supply of small starter homes, which makes all housing more affordable through the chain reaction effect,” said Ben Bear, CEO of BuildCasa, a startup which helps homeowners to split their lots under SB 9 and sell them to developers. “We’ve seen that SB 9 units can sell for 30-50% less per unit than other single-family homes due to increased density.”
Advocates hope the legislature revives an SB 9 clean-up bill proposed last year by Sen. Toni Atkins, a San Diego Democrat, that could also help to resolve this case.
Even Candell acknowledged that a simple clean-up to SB 9 could render the Los Angeles Court’s decision moot.
“We’ve lost the war,” she said. “We can’t undo all these laws one by one.”
Where this all started back in September of 2021
Gov. Newsom abolishes most single-family zoning in California
SB 9 allows up to four units on many single-family lots
September 2021
In one of his first actions after surviving an election seeking to oust him from office, Gov. Gavin Newsom on Thursday essentially abolished single-family zoning in California — and green-lighted a series of bills intended to bolster the state’s housing production.
By signing Senate Bill 9 into law, Newsom opened the door for the development of up to four residential units on single-family lots across California. The move follows a growing push by local governments to allow multi-family dwellings in more residential neighborhoods. Berkeley voted to eliminate single-family zoning by Dec. 2022, and San Jose is set to consider the issue next month.
While opponents fear such a sweeping change will destroy the character of residential neighborhoods, supporters hail it as a necessary way to combat the state’s persistent housing crisis and correct city zoning laws that have contributed to racial segregation.
“The housing affordability crisis is undermining the California Dream for families across the state, and threatens our long-term growth and prosperity,” Newsom wrote in a news release. “Making a meaningful impact on this crisis will take bold investments, strong collaboration across sectors and political courage from our leaders and communities to do the right thing and build housing for all.”
The crisis has long been a major concern among Bay Area voters — 89% said homelessness was an extremely serious or very serious problem when polled in January 2020. And 86% said the cost of housing was an extremely serious or very serious problem, according to the poll conducted for this news organization and the Silicon Valley Leadership Group.
Newsom took office with bold promises to attack California’s drastic housing shortage and in his first year landed a budget that included a record $1 billion to fight homelessness and $1.75 billion to build more homes, launched a homelessness task force and put forward a plan that for the first time would fine cities that defied production rules. This year, Newsom has made big commitments to housing Californians, including signing a $12 billion bill to build homeless housing and support services for unhoused people.
Newsom previously had shaken up single-family zoning by signing legislation that allowed more homeowners to build in-law units on their properties. SB 9 takes that further, allowing property owners to build up to two duplexes on what was once a single-family lot.
Slow-growth group Livable California, which has pushed back against SB 9, called it a “radical density experiment” and worried developers would use it to remake neighborhoods without community input.
A property must meet certain criteria under SB 9 before it can be developed into multi-family housing. It must be large enough, for example, and the owner must live there for at least three years before splitting the property. A study by UC Berkeley’s Terner Center for Housing Innovation found that the new law likely would add, at most, fewer than 700,000 housing units across California.
Newsom on Thursday also signed SB 10, creating a process that lets local governments streamline new multi-family housing projects of up to 10 units built near transit or in urban areas. That new legislation also simplifies zoning requirements under the California Environmental Quality Act, which developers complain can bog down projects for years.
“SB 10 provides one important approach: making it dramatically easier and faster for cities to zone for more housing,” the bill’s author, Sen. Scott Wiener, D-San Francisco, wrote in a news release. “It shouldn’t take five or 10 years for cities to re-zone, and SB 10 gives cities a powerful new tool to get the job done quickly.”
Newsom also signed SB 8, which extends the Housing Crisis Act of 2019. The act, which speeds up the approval process for housing projects, curtails local governments’ ability to reduce the number of units allowed on a site and limits housing application fee hikes, was set to expire in 2025. Now it will go through 2030.
Finally, Newsom green-lighted AB 1174 — a bill that specifically targets the Vallco housing, office and retail project underway in Cupertino. The city was forced to grant Vallco special approval under a new law that fast-tracks certain residential developments. That approval is good for three years, and Cupertino officials recently said Vallco’s is set to expire this month. AB 1174 clarifies that projects delayed by litigation — as Vallco was — get more time.
“Closing this loophole will protect thousands of new housing units statewide against the whims of local opposition,” Jim Wunderman, president and CEO of the Bay Area Council, wrote in a news release. “Too often, the legal system is abused to block housing that we so desperately need. AB 1174 fulfills the intent of past housing reform legislation to speed more housing construction in California.”