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Los Angeles Superior Court

A win is a win but keeping it in perspective is important

On March 29, 2022, the cities of Carson, Redondo Beach, Torrance, Del Mar, and Whitter (City of Redondo Beach, et al) filed a petition for writ of mandate in Los Angeles Superior Court against California Attorney General Rob Bonta and the state of California (Rob Bonta, et al) alleging that,

“SB 9 [Senate Bill 9] violates the California Constitution because it is neither reasonably related to its stated concern of ensuring access to affordable housing nor narrowly tailored to avoid interference with local government.”

Almost 2 years later, on April 24, 2024, Pam Lee, one of the attorneys on this case, sent an email to those who have been following it, saying,

“Great news – our SB 9 petition was GRANTED!! Please find attached the Court’s Minute Order as of 11:00 AM this morning granting our Petition for Writ of Mandate in the SB 9 Charter Law cities case…. this is a monumental victory for your cities and all charter cities in California. The decision will undoubtedly be appealed by the State, but until then, please enjoy this moment and spread the news. “

Two days before this, her law firm, Aleshire & Wynder, published a press release entitled, “Aleshire & Wynder, LLP Secures A Legal Win for Restoring Local Control on Housing: Court Rules In Favor of Five California Charter Cities Declaring Senate Bill 9 Unconstitutional.”

It stated,

“On April 22, 2024, at 11:00 AM, the Honorable Curtis A. Kin in Department 86 of the Los Angeles Superior Court issued a ruling granting a Petition for Writ of Mandate challenging the constitutionality of Senate Bill 9, as applied to charter cities. Senate Bill 9 requires all California cities to ministerially approve an application for a lot split, and up to four total housing units, on a single family residential lot that meets certain specified criteria.

“Five charter cities – Carson, Redondo Beach, Torrance, Del Mar, and Whitter – initiated a lawsuit in early 2022 against the State of California claiming that Senate Bill 9 is unconstitutional and invalid against charter cities. The League of California Cities and the City of Cerritos filed respective amicus briefs in the Trial Court in support of the Charter cities’ position. After extensive briefing and two hearings in Department 86, the Court ruled in favor of the five charter cities.”

On its face, this is certainly good news since it is one of the few lawsuits that has successfully pushed back on the tsunami of ridiculous state housing laws (140 in the past 10 years, by some counts) and the attorneys at Aleshire & Wynder and moreover the cities that initiated this suit should be commended for their commitment to the law and their tenacity to see it through. Suing the state is not for the faint of heart.

Yet, all things considered, I’m not sure anyone should be popping champagne corks just yet. To understand why I’m saying this, it’s important to know what this case is and is not about.

The Case of City of Redondo Beach, et al vs. Rob Bonta, et al

The Court’s ruling on this case, on April 22, 2024, begins by stating,

“Petitioners contend that SB 9 violates the California Constitution because it is neither reasonably related to its stated concern of ensuring access to affordable housing nor narrowly tailored to avoid interference with local government.”

“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. 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 SB 9 are not reasonably related and sufficiently narrowly tailored to the explicit stated purpose of that legislation--namely, to ensure access to affordable housing--SB 9 cannot stand, and the writ petition must be GRANTED.” [Emphasis added]

Note that this only affects California cities that are “charter cities.” It does not affect “general law” cities or county governments.

What is a Charter City?

According to the CA Department of Finance,

“The California Constitution gives cities the power to become charter cities. The benefit of becoming a charter city is that charter cities have supreme authority over “municipal affairs.” In other words, a charter city’s law concerning a municipal affair will trump a state law governing the same topic.

“Cities that have not adopted a charter are general law cities. General Law cities are bound by the state’s general law, even with respect to municipal affairs. Of California’s 478 cities, 108 of them are charter cities.

“The charter city provision of the State Constitution, commonly referred to as the “home-rule” provision, is based on the principle that a city, rather than the state, is in the best position to know what it needs and how to satisfy those needs. The home-rule provision allows charter cities to conduct their own business and control their own affairs. A charter maximizes local control.

“A city charter, in effect a city’s constitution, need not set out every municipal affair the city would like to govern. So long as the charter contains a declaration that the city intends to avail itself of the full power provided by the California Constitution, any city ordinance that regulates a municipal affair will govern over a general law of the state.”

The Case Analysis

In the ruling, under “Analysis,” the Judge states,

“The principal question presented in the instant petition is whether SB 9 violates the authority granted to charter cities under the California Constitution to govern and manage "municipal affairs." Municipal affairs "refer to the internal business affairs of a municipality." (Fragley v. Phelan (1899) 126 Cal. 383, 387.)”

He goes on to qualify this “authority” by saying,

“However, the power of a charter city to govern its municipal affairs must give way when the state enacts a statute that is "reasonably tailored to the resolution of a subject of statewide concern." (Cal Fed Savings, 54 Cal.3d at 7 ["In the event of a true conflict between a state statute reasonably tailored to the resolution of a subject of statewide concern and a charter city [] measure, the latter ceases to be a 'municipal affair' to the extent of the conflict and must yield"].) In deciding whether the state can enact a law with respect to a municipal affair, our Supreme Court articulated a four-step inquiry in Cal Fed Savings.”

The Court's Conclusions

Without going into detail, the Ruling found that SB 9, as written, failed the required legal tests,

“Compared to SB 35 and SB 423, SB 9 has, at best, an attenuated connection to affordable housing. In order to justify SB 9's interference with the municipal concerns of land use and zoning regulations, 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.

“Accordingly, the Court finds that SB 9 is neither reasonably related to ensuring access to affordable housing nor narrowly tailored to avoid unnecessary interference in local governance. SB 9 is therefore unconstitutional as violative of the "home rule" doctrine.”

The Bottom Line

In response to this ruling, social media posts have exploded with enthusiastic headlines like, “SB9 Ruled Unconstitutional” and “A Win for Local Control.” And any win is worth celebrating. But what is the real net impact of this ruling?

First off, as Ms. Lee noted, it is almost assured that this ruling will be appealed by the State to a higher court. So, this ruling and that appeal process will certainly keep state agencies from attempting to punish “non-compliant” charter cities for a couple of years. But the outcome of that appeal is far from certain. And what happens in the interim is also far from certain because even if the state should lose that appeal, the other remedies available to the state do not appear to be onerous. So much so that this may end up being a hollow victory that achieves a temporary hiatus, at best.

Let me explain.

The ruling is an undeniable win against vaguely worded and overly broad housing laws and to an extent even the state’s assertion that building more housing of any kind will axiomatically lead to housing being more affordable – a theory in search of evidence that is unsupported by the facts. But at the same time, the State could have avoided this lawsuit if the wording of SB 9 (which specifically states its intention to further affordable housing) was "reasonably tailored to the resolution of a subject of statewide concern" or, perhaps, more like the wording of SB 10 which states that

“The Legislature finds and declares that provision of adequate housing, in light of the severe shortage of housing at all income levels in this state, is a matter of statewide concern.” [Emphasis added]

As such, it doesn’t appear that it would take much to amend SB 9 so that the wording defect that this case partially rests on would be remedied. And therein lies my concern.

The Judge alluded to this defect nuance in his comparison of SB 9 to SB 35 and SB 423 (which have specific affordability requirements and which might also hold for SB 10). In plain language, the Judge found that SB 9 failed to establish how just being able to subdivide single-family lots and build more units somehow leads to addressing the Legislature’s “statewide concern” and SB 9’s stated purpose to further the creation of more affordable housing. In other words, SB 9 just assumes that is axiomatic that more building leads to affordability without evidence or conditions to ensure it.

As such, the Judge cites the declaration of Michael Storper, an expert in housing in California and a Distinguished Professor of Regional and International Development in Urban Planning; Director, Global Public Affairs at UCLA Luskin School of Public Affairs.[1]

"There is also virtually no evidence that substantially lower costs trickle down to the lower two-thirds of households.”

But again, even if this ruling is upheld by the Court of Appeal, how hard will it be for the Legislature, filled as it is with Wiener sycophants, to amend SB 9 to add wording or provisions to remedy this defect?

Attorney General Rob Bonta has already said he will “consider all options in defense of SB 9.” And California State Senator Toni Atkins (D-San Diego), who wrote SB 9, called the ruling “sadly misguided" and said she will immediately seek a "remedy."

So, is this a time to celebrate or a time to double down on filing legal actions against state housing laws wherever a reasonable argument exists to do so?

[1] The issue of evidence is discussed in detail in "Paradigm Shift: Rethinking Housing Affordability."