Single-family zoning scores a win in court with blocking of Senate Bill 9

The California Legislature specializes in lawless, partisan hackery. The list of bills that disregard the state constitution, or the federal one, borders on comical if you haven’t yet lost your sense of humor.

Remember the law that required a fixed number of women on corporate boards? Unconstitutional. Or the law that limited what doctors could say to their patients? So embarrassingly unconstitutional that the legislature and the governor actually repealed it while the legal challenge was still ongoing.

Currently the Legislature is considering three bills — and they’re moving through the goose quickly — that would cause your water rates to go up and up, while making it harder to get your money back if you’re overcharged. All three of these bills conflict with Proposition 218, a constitutional initiative approved by voters in 1996 that provides Californians with protection against excessive fees and rates that go beyond the cost of service.

Assembly Bill 2257 messes with your right to challenge water rate hikes by limiting the time to do so, while allowing water agencies to hide the various reports you would need in order to contest the rate increase. AB 1827 allows water agencies to set higher rates for parcels that potentially might use more water, even if they don’t, and also to charge more for peak usage times, which water agencies can’t even measure. Senate Bill 1072 takes away the right to a refund if a property owner is overcharged for services such as water and sewer, allowing only a credit on future bills instead. That cheats people who have moved.

You may want to call your representatives — look them up at findyourrep.legislature.ca.gov — and let them know what you think of these proposed laws, before they glide under the governor’s signature and somebody has to sue over them.

The good news is that sometimes even the California courts can’t take it anymore, and they strike down lawless laws as unconstitutional.

That’s what just happened to Senate Bill 9, gleefully and lawlessly authored by then-Senate Democratic leader and now candidate for governor Toni Atkins.

SB 9 abolished single-family zoning throughout the state of California. The law forced cities to approve plans to split single-family lots into two, or build duplexes on parcels that were zoned single-family. Although the final version of the bill had a few “but only if” and “except when” provisions tacked onto it to win the last few votes needed, the law created “by right” approval to demolish a single-family home and build two houses, each entitled to have a separate accessory dwelling unit, for a total of four households on the same parcel.

“By right” means the city must grant approval ministerially, regardless of the development’s impact on traffic, parking, privacy, aesthetics or trees in the neighborhood.

During the Senate debate over SB 9, then-Sen. Pat Bated, R-Laguna Niguel, held up a four-page, single-spaced list of community associations, city councils and individuals opposed to Atkins’ bill.

The Senate majority didn’t care. SB 9 was passed and sent to Gov. Gavin Newsom on Aug. 30, 2021, and he signed it on Sept. 16, right after the polls closed in his recall election.

However, SB 9 has now been stopped. In a decision issued on April 22, Los Angeles Superior Court Judge Curtis Kin ruled that the law is unconstitutional.

It’s a victory for the cities of Redondo Beach, Whittier, Carson, Del Mar and Torrance. They filed a lawsuit challenging SB 9 as a violation of the state constitution’s protections for charter cities.

There are two kinds of municipalities in California: “charter” cities and “general law” cities. Cities that adopt charters, which are like a local constitution, have more autonomy over municipal affairs. The state Legislature can’t pass a law that overrides the will of the residents of a charter city unless it first “finds and declares” that it is addressing “a matter of statewide concern.”

Atkins’ bill said the “matter of statewide concern” was “ensuring access to affordable housing.” But the Legislature did not require property owners to charge below-market rents for any of the new units they were entitled to build “by right” on their single-family lots.

And that, Judge Kin said, fails the test of whether this particular state law may override local control. “SB 9 is neither reasonably related to ensuring access to affordable housing nor narrowly tailored to avoid unnecessary interference in local governance,” he wrote. “SB 9 is therefore unconstitutional as violative of the ‘home rule’ doctrine.”

The ruling applies to the five cities that were parties to the case, but if Attorney General Rob Bonta appeals the decision and loses, it will apply to every charter city in California. There are more than a hundred, including Los Angeles, San Francisco, San Jose, San Diego, Long Beach, Riverside, San Bernardino, Anaheim, Newport Beach, Huntington Beach, Irvine, Irwindale, Santa Ana, Seal Beach, Pasadena and Arcadia.

Of course, the Legislature could try again to pass a bill that abolishes single-family zoning, and they could “find and declare” some other reason that it was “a matter of a statewide concern.” But there are good reasons for opposition to a law that takes zoning control out of the hands of local elected officials and forces one-size-fits-all policy on every city.

People spend their life savings and their life’s earnings to buy a single-family home. One of the fundamental tenets of liberty is the right to own and enjoy property, but the “enjoy” part is confiscated when the state changes local zoning in a way that enables all the neighbors to put four households on their single-family lots, and doesn’t even allow local governments to consider the impact.

They would never do this to the habitat of a Delta smelt.

And for now, at least, they can’t do it to endangered homeowners in five California cities.

Write Susan@SusanShelley.com and follow her on Twitter @Susan_Shelley