On April 22, 2024, a Los Angeles County Superior Court ruled that Senate Bill (SB) 9 does not apply to charter cities because it violates the authority granted to charter cities by the California Constitution to manage their own municipal affairs, notwithstanding the fact that SB 9 expressly provides that it applies to both general law and charter cities. (City of Redondo Beach, et al., v. Rob Bonta, in his capacity as California Attorney General, Case No. 22STCP1143 (2024).) Currently, the Redondo Beach ruling is only binding on the five petitioner charter cities – Redondo Beach, Carson, Torrance, Whittier, and Del Mar. However, this ruling could ultimately have a broader impact on the state’s ability to enforce SB 9 and other state housing laws in all of California’s 121 charter cities. 

Background

As we explained in more detail in our prior alert, SB 9 is a 2021 state housing law that requires ministerial approval (i.e., no mandatory public hearing, no CEQA review) of duplexes and lot splits (up to two parcels and four units) for qualifying properties in single-family zoning districts, provided that other specified criteria are met. (Government Code §§ 66411.7, 65852.21.) Among other criteria, applicants (except for nonprofits or community land trusts) for a SB 9 lot split must sign an affidavit stating that it “intends to occupy” one of the units for at least three years following the lot split and no unit created by the lot split may be used for short-term rentals. There is no on-site affordability requirement for SB 9 projects.

The “Home Rule” doctrine separately allows charter cities to legislate regarding their own municipal affairs, but they must defer to a state law that is “reasonably tailored to the resolution of a subject of statewide concern.” (California Def. Savings & Loan Assn. v. City of Los Angeles (1991) 54 Cal.3d 1, 5.)

Redondo Beach Ruling

In Redondo Beach, the petitioners alleged that SB 9 violates the California Constitution because it is neither reasonably related nor narrowly tailored to achieve its stated concern of ensuring access to affordable housing. The state claimed that SB 9 aims to increase the overall housing stock statewide, but the petitioners argued, and the court agreed, that the statewide concern at issue is limited to ensuring access to affordable housing because the text of SB 9 unambiguously states that as its purpose. (Redondo Beach at pp. 6-7.) The court went on to conclude that SB 9 is not reasonably related to increasing affordable housing, finding that the state presented “no evidence to support the assertion that the upzoning permitted by SB 9 would result in any increase in the supply of below market-rate housing.” (Redondo Beach at pp. 10-11.) The court contrasted SB 9 with SB 35, which has been upheld as applicable to charter cities for specifically including streamlined approval for affordable and mixed-income housing projects that include certain levels of affordability. (Redondo Beach at p. 11.) In contrast, to justify SB 9’s interference with the municipal control over land use, the “Legislature cannot rely on a potential, eventual decrease in prices resulting from increased housing supply to demonstrate that SB 9 would increase the supply of affordable (i.e., below market-rate) housing.” (Ibid.) The court stressed that this ruling is not intended to opine on whether the Legislature can enact legislation to ensure access to affordable housing or whether it may act to address the different concern of statewide housing shortage more generally; SB 9 simply failed to meet the criteria for doing so. (Redondo Beach at p.1).

Implications of the Redondo Beach Ruling

The court’s ruling is currently only binding on the five petitioner cities. On May 1, 2024, the petitioner cities filed a request for dismissal and proposed judgment requesting that the court, among other things, (i) declare that SB 9 “is unconstitutional as applied to all charter cities” and (ii) issue a peremptory writ of mandate directing the Attorney General to “cease implementation and enforcement of SB 9 against all charter cities.” The Attorney General filed objections to the proposed judgement on May 10, 2024, positing in part that the court “lacks jurisdiction over entities that are not parties to this matter, and thus should not issue a judgment that effectively enjoins [the Attorney General] from enforcing SB 9 against any non-parties to this action.”