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COURT RULING - In a ruling remarkable for its clear-headed logic, a Los Angeles County judge last week declared unconstitutional California Senate Bill 9 (SB 9), the 2021 law that deregulated residential real estate by ending single-family zoning across the state of California.
The judge reached three conclusions:
- First, that there’s no nexus, or direct connection, between eliminating single-family zoning and producing affordable housing (below market-rate housing), because SB 9 includes no requirement that new housing be rented or sold at below market rates.
- Second, that even under a more expansive reading of the law to mean “housing that’s affordable” versus affordable housing per se, SB 9 also falls short. The judge cites evidence suggesting the opposite may actually be true; that is, the law can lead to the creation of new housing that is less affordable (above market rates) as a result of gentrification.
- Third, that because the law is so broadly drawn, it unlawfully intrudes on California charter cities’ constitutional right to control their own municipal affairs including land use. (There are about 120 charter cities in California, including Los Angeles and San Diego.) Thus, SB 9 is unconstitutional.
The judge’s ruling, which you can read here, was entirely foreseeable. SB 9 was billed by its backers as an affordable housing mechanism, but that was false advertising. It’s just another statewide housing mandate.
Certainly the five charter cities that brought the litigation (Redondo Beach, Carson, Torrance, Whittier and Del Mar) understood as much, as did many of us across the state who opposed the legislation. Notably, the City Council of Los Angeles voted to oppose the law, as did the League of California Cities.
Reacting to the ruling, California Attorney General Rob Bonta, who has defended SB 9 and brought action against cities to enforce it, called SB 9 “a tool.” Fair enough, but that doesn’t justify an unconstitutional response, especially when the tool doesn’t advance the purported objective.
At the end of the day, single-family zoning does not have to be ended, or home rule evaded, to meet the state’s housing production challenges. We can have truly affordable housing, be it low or middle-income, everywhere under other existing laws and regulations. In fact, approved housing elements and community plans already include capacity for more than two million additional housing units across the state. In other words, current zoning already enables over two million more units by right. The answer is right under our nose.
The radical housing productionists who believe in building anything anywhere will no doubt call last week’s court decision illogical and irrational. Those truly drunk on their ideology will be apoplectic. But to those of us who believe in land-use planning, zoning and the principle of home rule as enshrined in the California Constitution, the judge’s ruling is as reasonable as they come.
(Cary Brazeman, a CityWatch contributor, was chair of the Planning and Land Use Committee of Mid City West Community Council, a certified neighborhood council in Los Angeles whose boundaries include the Miracle Mile, the Fairfax District, western Melrose Avenue, the Beverly Center and Burton Way.)
