Santa Monica City Attorney's Office provides update on Senate Bill 9

May 2, 2024 3:20 PM
by Douglas Sloan

PUBLIC LAW UPDATE: City of Redondo Beach et al v. Bonta (Senate Bill 9)

What was the Court’s ruling?
Senate Bill 9 (SB 9) promotes small-scale residential development by streamlining the process for a homeowner to create a duplex or subdivide an existing lot. The provisions of SB 9 require cities and counties to permit ministerially either or both of the following as long as they meet specified conditions: (1) a housing development of no more than two units (a duplex); and (2) the subdivision of a parcel into two approximately equal parcels (lot split). In enacting SB 9, the Legislature found that ensuring “access to affordable housing” was a matter of a statewide concern and not a municipal affair such that SB 9 would apply to all cities, including charter cities, regardless of local zoning requirements.

On March 29, 2022, Redondo Beach, Carson, Torrance, Whittier, and Del Mar (“Petitioners”), all charter cities, sought a writ of mandate to invalidate SB 9. On April 22, 2024, the Los Angeles Superior Court issued its ruling in City of Redondo Beach et al v. Bonta. The Court noted that the provisions of SB 9, allowing lot splits and duplexes, are not reasonably related and sufficiently narrowly tailored to the explicit stated purpose of the legislation – namely to ensure access to affordable housing. Thus, the Court ruled that SB was thus unconstitutional as violative of the “home rule” doctrine. The ruling has been closely followed across the state, and Santa Monica has received numerous questions as to how this affects the City.

What does the ruling mean for Santa Monica?
The subject litigation involved charter cities that did not want to be subject to SB 9. As a ruling of the Los Angeles Superior Court, the court’s ruling is not binding on any other party except those involved in the litigation, nor does it not prevent Santa Monica from legislating its own municipal affairs and continuing to implement Santa Monica Municipal Code section 9.31.125, Santa Monica’s SB 9 implementing ordinance. Further, the ruling does not prevent the City from following City Council’s direction to allow for additional units on parcels 10,000 square feet or greater to provide more housing opportunities in the R-1 single family zones.

Will the State appeal the ruling?
It is currently unknown whether the State intends to appeal the decision. Nonetheless, legislation could address and remedy the narrow issue presented in the case, which would obviate the necessity for an appeal.

Given this ruling, could the City amend or repeal its SB 9 ordinance?
Implementation of Section 9.31.125 was a part of the City’s required Affirmatively Furthering Fair Housing (“AFHH”) strategy submitted to, and certified by, the California Department of Housing and Economic Development (“HCD”) in the Sixth Cycle Housing Element. This implementation was necessary to avoid blanket upzoning of the City’s R-1 single family residential zones. Amending or repealing Section 9.31.125 would go against the City’s commitments in the Housing Element and could potentially affect our ability to comply with other programs by lessening opportunities for additional housing units and types in the R-1 residential zones. If the City were to repeal or amend Section 9.31.125, it would have to propose an alternate AFHH strategy for these R-1 zones through an amendment to the City’s Housing Element. Such proposal will open the City’s Housing Element up again, will require review and certification by HCD, could possibly cause the City to be out of compliance with its Housing Element, and could potentially subject the R-1 zones to further upzoning beyond the limits of Section 9.31.125.

What are the consequences of being out of compliance with the Housing Element?
If the Council were to take legislative action to change the ordinance in violation of the City’s approved Housing Element, and in a way leading to non-compliance with the City’s Housing Element Programs, HCD may notify the Attorney General and refer the case for prosecution and impose fines upon the City. Additionally, the City could be subject to additional Builder’s Remedy projects if HCD determined the City to be out of compliance with the certified Housing Element. The City may also be subject to private enforcement actions.

Could amending or repealing the City’s SB 9 ordinance affect the City’s prohousing designation?
Possibly. Santa Monica was recently designated as a prohousing community, recognizing the City’s strong commitment to developing affordable housing and opening the door for added funding opportunities to help the city continue this work. A compliant Housing Element is a requirement for the prohousing designation and to provide access to this funding. If the City were to fall out of compliance with its Housing Element, there is a possibility the City could lose this designation and no longer be eligible for a variety of funding options.

What’s next?
The City Attorney’s Office is continuing to monitor this issue along with the status of proposed legislation and will continue to keep the City Council and community apprised as we receive more judicial and legislative guidance.

Authored By

Douglas Sloan
City Attorney