Contrary to many headlines, Senate Bill 9 (SB 9) did not eliminate single family zoning in California. What it did, however, was to impose a modest restriction on local control of land use – touching off a firestorm of opposition from cities and citizens throughout the state. In a recent ruling by the Superior Court in Los Angeles (City of Redondo Beach, et al, v. Rob Bonta, et al), the Judge ruled that SB 9’s restrictions violated the traditional “home rule” authority of charter cities regulate land use within their jurisdictions.  Undoubtedly, there will be an appeal and various legislative responses, but for now, the ruling stands that SB 9 no longer applies to five California’s charter cities, and may be invalid as to the remaining 120 or so charter cities in California.  While NIMBY groups around the state may be cheering this decision, the victory may be more symbolic than real.  However, the ruling should serve as a warning shot across the bow of affordable housing advocates seeking legislative solutions to address the acute and very real lack of affordable housing:  Do a better job drafting your legislation!  

What did SB 9 do?  The basic thrust of SB 9 (and SB 10 which was also passed during the same legislative session), was to allow for greater housing density in single family zoned areas as part of an overall legislative policy to address the lack of housing, especially affordable housing. The theory was that if more housing could be developed by subdividing single family zoned properties into duplexes, greater density (and smaller units) would result in more affordable units.  However, as I have been pointing out to my students for the past three years, nothing in SB 9 provided that the units had to be affordable!  And yet, this theory was precisely what the Legislature clumsily attempted to use to preempt local control, and which the Judge ruled was a fatal flaw.  However, this flaw is not one that can be easily remedied simply by passing new legislation, and I’ll go out on a limb and predict that the Judge’s ruling won’t easily be overruled on appeal. 

Previous legislation, going back to the early 1980s, has attempted in various ways to remove barriers to housing construction by providing both incentives and penalties. As the pace of construction has fallen further and further behind demand, and the cost of housing has skyrocketed due to a number of factors, the State Legislature has attempted (and failed) to tackle specific obstacles while at the same time preserve the time-honored tradition of local control over land use policies and regulations. For the past four decades, the incentives have been too small, the major obstacles too big, and the penalties … well, just haven’t been enforced.  As the costs of materials, supply and labor have climbed, as politicians have balked or caved to NIMBY opposition, and as California’s population has continued to grow, the size of the problem has simply gotten out of hand. There is no more compelling evidence of the scope of the problem than the explosive growth of homeless encampments throughout urban areas, but the real statistics tell an even more alarming story:  Between 1980 and 2020, California’s population jumped from around 24 million to almost 40 million people!   

Due to the Legislature’s sensitivity to the tradition of local control over land use, the best that could be said about the legislative efforts to remove barriers and obstacles to affordable housing could be characterized as “tweaking” rather than meaningful reform. It is little surprise that the regional housing needs allocation (RHNA) for the City of San Jose jumped from around 35,000 for the 8-year period that just ended in 2022 to over 62,000 for the next 8-year period ending in 2031.  It is also disappointing but not surprising that of the 35,000 housing unit goal, San Jose only saw 14% of the number of affordable units actually constructed, and their plans to achieve the next targeted goal were rejected three times by the Department of Housing and Community Development before being approved earlier this year!  San Jose was hardly alone in failing to meet its regional allocation of housing, or coming up with an approved housing element, which is why cities throughout California – including San Jose – are locked into disputes with developers over what is known as “builder’s remedy” options.  However, it is unlikely that these measures will have any more impact on housing development than even the most skeptical predictions under SB 9. 

In this context, SB 9 was basically doomed to fail.  A study by the Terner Foundation in Berkeley predicted that, at most, only around 400,000 properties in the ENTIRE STATE would be eligible under the statute’s requirements, not to mention the practical obstacles involved, the biggest was the costs involved.  Demolishing a single family house, subdividing the lot, and building two duplexes (and possibly a couple of ADUs) on the property – all of which was permitted under SB 9 without the need for any hearings or discretionary review by the City – would be an extremely expensive undertaking that would not “pencil out” for a developer. Moreover, there were multiple restrictions under SB 9 that would render a parcel ineligible for consideration.  For example, any property that has had a tenant in the past three years would be ineligible, as well as any property in a historic district.  Also excluded were any property sites that were located in a Very High Fire Hazard Severity Zone, an earthquake fault zone, a flood hazard zone, or a regulatory floodway per FEMA standards.  Since the City of San Jose does not keep track of single family rental properties, the specific restriction pertaining to any property having “been occupied by a tenant during the past three years” would be a problem.     

But the key point raised by the Judge’s ruling was that nothing in the statute addressed the issue or required that the housing developed pursuant to the “relaxed” requirements under SB 9 be “affordable.”  The legislation simply assumed that higher density would result in housing that was perhaps more affordable than what might be achieved than less dense housing standards. The Court had no problem with the overall right of the State to preempt local land use control if it could identify a specific, narrowly-tailored process to achieve a “matter of statewide concern,” and in fact noted that several of the other legislation recently enacted to address this very issue included identical language. But the Court noted that those specific statutes actually included specific provisions to ensure that the development would yield housing that met the requirements to qualify as “affordable housing” under the prevailing standards.  SB 9 simply failed to do so. 

There’s an old saying to the effect that “People who love sausage and respect the law should never watch either being made.” Whether attributed to Otto Von Bismark or Mark Twain or earlier writers, the essence of this sentiment is that the process of making laws can be both complicated and messy. On the other hand, interpreting what a statute means is guided by very simple rules, the first and foremost of which is to look at the “usual and ordinary meanings” of the statute’s words. If the words are not ambiguous, the Courts will presume that the Legislature meant what it said, and the statute’s plain meaning governs.  Here, proponents of affordable housing committed one of the most common “sins” of legislative efforts – a poorly worded, overly convoluted measure so full of exceptions and exemptions that simply failed to include the basic objective it set out to accomplish.   

Correcting this error will not be easy.  Passage of SB 9, despite its inherent flaws, triggered a statewide reaction to what was perceived as an egregious usurpation of the tradition of local control over land use. It fully energized politicians and citizens throughout the State into taking proactive measures to fight back and actively resist attempts at the State level to create more affordable housing. The lawsuit brought by the charter cities of Redondo Beach, Carson, Torrance, Whittier and Del Mar in this action are only the tip of the proverbial iceberg of opposition to these efforts, and pro-housing advocates and politicians around the State should take note. The recent release of the two bombshell audits that revealed the extraordinary lack of accountability for the billions of taxpayer dollars spent on failed “solutions” to homelessness have added fuel to the fire.  In addition, the U.S. Supreme Court has recently been tasked to take another look at a complicated issue involving to what extent can local government can abate homeless encampments. In this case, Grants Pass v. Johnson, dozens of California Cities filed amicus briefs in support of overturning, or at least clarifying, an earlier decision that restricted the authority of local jurisdictions to remove these encampments unless and until there was sufficient housing available. 

My prediction is that all of this – the ruling over the interpretation of SB 9, the audits, and the pending decision in the Grants Pass case (due in June) – will make it extremely difficult, if not politically impossible, to correct the drafting error in SB 9.