Future of zoning and ine ective SB9 now unclear

The combination of the 2021 laws best known as SB9 and SB10 was supposed to bring scads of new affordable housing to the California market, ending single family zoning forever and solving the state’s housing shortage.

But they did not, mostly because the extra housing allowed under SB9 never became popular and developers never followed up by taking out many of the extra building permits easily available under SB10.

For one thing, rather than growing, the pace of homebuilding in California actually slowed after those bills and others designed to grease the skids for new apartments and condominiums failed to arouse much response.

Now SB9 may be doomed, its future very much in doubt after a Los Angeles Superior Court judge ruled in favor of five cities that disputed the state’s right to end their authority over most local land use.

So far, Judge Curtis Kin’s ruling in the case of City of Redondo Beach et al. v. California Attorney General Rob Bonta applies only to Redondo Beach and four other cities that joined the lawsuit. But Kin’s reasoning appears solid and if his ruling is upheld by California’s liberal-leaning appeals courts, it will eventually apply in every major city.

Bonta has indicated he will fight the decision, saying he “will consider all options in defense of SB9.”

SB9 authorized building as many as six homes on lots previously zoned for only one. Two duplexes could be built on lots to be subdivided almost everywhere in California, with a smaller additional dwelling unit (or “granny flat”) possible for each duplex, for a total substitution of six units for one. But such a state law could only apply in the state’s charter cities if it aimed to solve a statewide problem. Otherwise, charter cities’ rights to govern land use in their own jurisdictions must remain untouched, says the state Constitution.

SB9 was aimed, it said, at creating affordable housing everywhere, solving a statewide problem.

So far, individual subdivisions allowed under SB9 have achieved little popularity, with well under 2,000 such units built since the bill became law. What’s more, SB9 did not compel this new housing to meet the legal definition of affordability, where pricing is limited to a specific percentage of average market values in their area and caps on future resale prices.

Los Angeles lawyer Pam Lee, arguing for the five cities behind the lawsuit (Redondo Beach, Torrance, Carson, Whittier and Del Mar), claimed SB9, “neither reasonably related to its stated concern of ensuring access to affordable housing nor (was it) narrowly tailored to avoid interference with local government.”

The judge (a former deputy US attorney and an adjunct professor at Loyola Law School in Los Angeles) agreed, saying “there is virtually no evidence that (under SB9) substantially lower costs trickle down to the lower twothirds of households (by income).” So, he said, the bill was unconstitutional. Initially, his decision applies only to the plaintiff cities in the lawsuit. If upheld on appeal, it will apply to all charter cities, including every major population center from Los Angeles to Palo Alto and from San Francisco to Santa Barbara. Other charter cities include Visalia, San Diego, Victorville, Palm Springs, San Jose, San Bernardino, Berkeley, Big Bear Lake and more than 100 others.

What’s left are smaller “general law” locales.

The bill’s author, former state Senate President Toni Atkins, a Democrat now running for governor, immediately promised a replacement measure to fix SB9.

But that won’t make duplexes with or without granny flats any more popular than they’ve been, as very few homeowners have applied to get their current houses demolished and replaced by new units.

Meanwhile, the ruling also did not stop the name-calling that has long accompanied SB9 and SB10. Atkins, for one, called opponents “NIMBYs (Not in My Backyard).” She said, “The goal of SB9 has always been to increase equity and accessibility in our neighborhoods while growing our housing supply”

She did not acknowledge that her bill so far has failed on both counts.

But SB 9 is not dead yet, even as opponents are currently rejoicing. Its fate remains very uncertain because California appellate courts have been reluctant to interfere with any of the new housing laws passed by Democratic legislators since 2000.