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In a decision that could upend zoning policies and housing plans in Palo Alto and more than 100 other California cities, a Los Angeles judge ruled this week that a recent law that allows duplexes and triplexes in single-family zones is invalid in charter cities.
The April 22 ruling from Los Angeles County Superior Court Judge Curtis Kin applies specifically to the state’s 121 charter cities, which are governed by their own charters rather than by the state’s general law. Palo Alto, Mountain View and Redwood City are all charter cities and, as such, could find themselves no longer bound by the provisions of Senate Bill 9, a 2021 law that allows property owners to split their lots to create more housing.
Kin’s ruling represents a victory for a coalition of cities that challenged the law, arguing that it infringes on their local powers. The five charter cities — Carson, Redondo Beach, Torrance, Whittier and Del Mar — filed a lawsuit in early 2022 arguing that the bill is unconstitutional. The League of California Cities, an advocacy group for municipalities, filed an amicus brief last year in support of the lawsuit, arguing that the bill does not meet the conditions for the state to overrule local policies.
The April 22 ruling from Kin supports this position. The principal question presented in the petition, Kin wrote, is whether SB 9 violates the authority granted to charter cities under the California Constitution to govern municipal affairs. He conceded that in some cases, the power of charter cities to govern their own affairs “must give way when the state enacts a statute that is reasonably tailored to the resolution of a subject of statewide concern.”
In the case of SB 9, however, Kin contended that there is a dispute over what exactly constitutes a “statewide concern.” The cities argued that the purpose of SB 9 was ostensibly to increase “affordable housing” and that the bill fails to accomplish this goal because it does not require below-market-rate housing.
Attorney General Rob Bonta has contended that the statewide concern in this case is the overall shortage of housing in California, which the bill aims to remedy.
In his ruling, Kin sided squarely with the cities.
“As discussed below, this is not a case about whether our State Legislature may enact legislation to ensure access to affordable housing or whether it may act to address the different concern of a statewide shortage in housing more generally,” Kin wrote in the ruling. “The courts of our State have held both to be valid statewide concerns for which our Legislature possesses authority to address.
“However, because the provisions of SB9 are not reasonably related and sufficiently narrowly tailored to the explicitly stated purpose of that legislation — namely, to ensure access to affordable housing — SB9 cannot stand, and the writ petition must be granted.”
Kin argued that the bill’s “broad requirement of ministerial approval of duplexes and urban lot splits does not contain any connection to affordable housing,”
“Under SB 9, charter cities would be required to approve additional housing development in a single-family zoned land, but any additional housing resulting therefrom would not necessarily be below market rate or accessible to people with lower financial means, especially in economically prosperous cities,” the ruling states.
The Department of Justice has not yet determined whether it plans to appeal Kin’s ruling. In an April 25 statement provided to this publication, a spokesperson for Bonta said, “We are reviewing the decision and will consider all options in defense of SB 9.”
But if the decision stands, its impacts would reverberate throughout the state, prompting cities and towns to modify their housing plans and zoning codes.
While Palo Alto was not party to the lawsuit, the city had formally opposed SB 9 in the months before its passage. Former Mayor Tom DuBois submitted a letter on the council’s behalf in 2021 urging state lawmakers to reject the bill. Much like the southern California cities, he argued in the letter the law interferes with the rights of cities to determine their own land-use policies.
“State driven ministerial or by-right housing approval processes fail to recognize the extensive public engagement associated with developing and adopting zoning ordinances and housing elements that are certified by the California Department of Housing and Community Development (HCD),” DuBois wrote.
Since then, the city has only approved three SB 9 applications, with another five currently under approval, according to Meghan Horrigan-Taylor, the city’s chief communications officer.
At the same time, the law has been a major driver behind numerous policy decisions, including the city’s recent adoption of new design guidelines for SB 9 projects and its ongoing efforts to get state approval for its housing plan. Palo Alto’s latest Housing Element draft cites the city’s application of SB 9 as a key component of its effort to promote equity by encouraging a mix of housing types in wealthy areas.
The document states that its new SB 9 design standards will “encourage the development of smaller‐scale ‘missing middle’ housing projects such as duplexes, triplexes, and 4‐10 unit projects that are compatible in scale with single‐family homes within walkable neighborhoods.”
SB 9 was also one of the key drivers of Palo Alto’s contentious effort to designate about 150 local properties as “historic,” thereby shielding them from the law’s provisions. Earlier this week, the City Council scrapped this plan because of opposition from residents who did not want to see their properties added to the list.
The law also made waves in Woodside, where elected leaders famously tried to circumvent SB 9 by designating the entire town a mountain lion sanctuary. The effort fizzled in February 2022 after Bonta issued a letter calling the move “contrary to law.”
Horrigan-Taylor told this publication that Palo Alto is now reviewing the court decision as it relates to these applications as well as to the city’s Housing Element, the municipal code and other housing policies and programs.
“In addition, the City is evaluating how we are handling existing applications under review and no decision has yet been made,” Horrigan-Taylor said in an email. “The City welcomes the court’s recognition of the authority of charter cities. The City is also committed to advancing housing and affordable housing in our community and will continue to make progress on this important priority through a variety of methods.”
Council member Lydia Kou, a long-time critic of Sacramento’s housing laws, announced the Kin ruling at the April 22 meeting of the City Council and called it a “great thing” for charter cities. She told this publication in an interview that she very much agrees with Kin’s finding that the California Legislature had infringed on the city’s rights as a charter city when it approved SB 9.
“I think a lot of the time the legislators in Sacramento are really detached from the local communities and they really have no idea or little idea of what each municipality is going through in terms of funding, in terms of (addressing) the cost of living, in terms of what constituents are thinking and feeling,” Kou said.
Kou called laws like SB 9 disruptive to local communities and said she agreed with Kin that the term “affordable housing” should be reserved for below-market-rate units.
“I’m very happy to see the word ‘affordable’ is not just what a lot of what the Build-baby-build people are implying,” she said.
Not everyone, however, was cheering the Monday decision. Chris Elmendorf, a law professor at University California, Davis, characterized Kin’s ruling as a “weird, narrow decision that turns on a lawyerly sleight of hand.” The key flaw, in his view, is Kin’s decision to strictly define “affordable housing” — the stated goal of SB 9 — in the narrow sense as deed-restricted below-market-rate housing. Meanwhile, in adopting the law, the Legislature used it in the broader sense of “naturally affordable housing” that would be created if the state increases its housing supply, Elmendorf wrote in his analysis of the bill on X.
“That is, because SB 9 is designed to enable development of relatively dense, relatively affordable market-rate homes in single-family neighborhoods, the (legislature) surely used ‘affordable housing’ in the ‘naturally affordable’ sense of the term,” Elmendorf wrote.
Matthew Lewis, communications director for the housing advocacy group California YIMBY, said the Kin ruling is symptomatic of a broader dispute over the phrase “affordable housing,” a debate that has become so pervasive and confounding that his organization made a video about it.
For those involved in housing policy, the phrase generally connotes housing that is subsidized and deed restricted for certain income levels. For most other people, including those in the legislature, it simply means having housing that is affordable for California residents, including those whose incomes are too high to qualify them for below-market-rate units, he said.
“They don’t mean ‘subsidized’ unless they say ‘subsidized,'” he told this publication.
Lewis said he was not entirely surprised to see SB 9 challenged, which is common for housing legislation. He also said he fully expects the state to appeal the ruling. And while housing advocates aren’t thrilled about Kin’s ruling, Lewis said that given the legislature’s commitment to increasing California’s production of affordable housing (in the broader sense of the term), he expects lawmakers to resolve the once-rhetorical and now legal problem surrounding the term “affordable housing.”
“I have a fair bit of confidence that they’ll come back and address it,” Lewis told this publication.
Pam K. Lee, an attorney at the firm Aleshire & Wynder, LLP, who is representing the five cities, also said she expects the ruling to be appealed. She called the ruling a “victory for charter cities” and said the cities opted to challenge SB 9 because the state bill was “expressly drafted, enacted and implemented in order to promote access to affordable housing.”
“But when you look at the text of SB 9, we don’t see any aspects of affordable housing being included as part of the creation of housing units in the process,” Lee said.