California attorney general vows to appeal affordable housing exemption ruling

OAKLAND, Calif. (CN) — California Attorney General Rob Bonta said on Friday he’d appeal a Los Angeles judge’s decision that exempted five charter cities from the effects of a statewide housing law.

The charter cities of Redondo Beach, Carson, Torrance, Whittier and Del Mar sought a writ of mandate from Los Angeles County Superior Court to stop the state from enforcing Senate Bill 9 against them. That bill, passed in 2021, allows cities and counties to ministerially approve some housing developments — meaning no review or hearing occurs — if certain conditions are met.

The petitioners argued this violated the home rule doctrine inherent in charter cities. The Legislature is prohibited from interfering in managing or governing such cities, unless the state makes a law that is designed to resolve an issue of statewide concern.

Though Judge Curtis A. Kin, in his April ruling, said the Legislature’s stated intent is clear — to ensure access to affordable housing — the cities argued that Senate Bill 9 is not reasonably connected to providing affordable housing access. It’s also not properly tailored to sidestep unnecessary interference in the cities’ governing, they said, which Kin ultimately agreed with.

“Respondents present no evidence to support the assertion that the upzoning permitted by SB 9 would result in any increase in the supply of below market-rate housing,” the judge wrote.

“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,” he added. “SB 9 is therefore unconstitutional as violative of the ‘home rule’ doctrine.”

Attorneys appeared in court Tuesday and argued over the form of the judgment, said Michael Webb, city attorney for Redondo Beach. The judge on Tuesday confirmed that Senate Bill 9 is unconstitutional, and that the attorney general cannot implement or enforce that law against the petitioners.

Webb noted that it’s unconstitutional because of the home rule doctrine. It still applies to non-charter governments.

State Attorney General Rob Bonta said Friday that he would appeal.

“We firmly believe that SB 9 is constitutional as to every city in the state,” Bonta said in a statement. “As the California Second District Court of Appeal recently held, ensuring housing availability and affordability in California is a matter of statewide importance. My office has vigorously defended the Legislature’s efforts to provide dignified housing to every Californian, and we will continue doing just that with SB 9.”

Webb said the appeal wasn’t a surprise.

“I don’t think it’s the best use of taxpayer dollars,” he added.

According to Webb, the Legislature has the power to change the stated intent of the law — a different method to deal with the state’s housing crisis than appealing this case.  

“I can’t imagine enforcing a law that’s deemed unconstitutional,” he said.

With the continued housing affordability crisis in California, critics on both sides of the aisle have pointed to the high cost to build, the supposed reticence of some communities to allow new development and the abuse of the California Environmental Quality Act to hinder new projects.

Senate Bill 9 was just one of many bills over the past few years intended to address the housing affordability crisis in California. Several bills are being considered in the Legislature this session.

Some of them focus on streamlining a project’s ministerial approval process, similar to Senate Bill 9.

Others, like Assembly Bill 2881, or the Social Housing Act, are further reaching. It would have created the California Housing Authority, which would work toward the creation of social housing developments — a kind of housing for people of different incomes levels that is self-sufficient because those who make more money subsidize others.

The bill failed to get out of committee in May.

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