The League of California Cities filed an amicus brief last week urging the Los Angeles County Superior Court to rule in favor of charter cities in an SB 9 (Atkins, 2021) lawsuit. The controversial law circumvents local review processes and allows homeowners to build up to four homes on a single-family parcel of land.
Last year, five charter cities — Redondo Beach, Carson, Torrance, Whittier, and Del Mar — filed a lawsuit in the superior court alleging that SB 9 is unconstitutional because it interferes with charter cities’ home rule authority over land use and zoning.
How does SB 9 affect charter cities’ land use policies?
SB 9 generally requires cities to ministerially approve applications that would create two lots on any parcel zoned as single-family residential or develop two units of at least 800 square feet on those lots. This effectively requires cities to allow for up to four homes in single-family residential zones.
The five charter cities that sued allege that SB 9 unconstitutionally interferes with the “home rule” authority guaranteed to them under Article XI, Section 5 of the California Constitution. Voters added Article XI, Section 5 on the premise that cities are in a better position than the state to know what their residents need and want. It grants charter cities the exclusive right and privilege to enact local laws that carry out the needs and wants of the city’s residents.
When it comes to enacting laws of “municipal affairs,” charter cities have supreme authority. The California Supreme Court has held that the state cannot override that authority except to address a “matter of statewide concern,” and only if the state law is “reasonably related” to resolve that concern and “narrowly tailored” to avoid unnecessary interference in local governance.
What does Cal Cities’ amicus brief say?
Cal Cities’ amicus brief argues that SB 9 does not meet the conditions necessary for the state to override charter city authority. The brief first notes that SB 9 fails to clearly articulate the matter of statewide concern it intends to address. This distinguishes SB 9 from other state housing laws that appellate courts have recently upheld in the face of constitutional challenges.
The brief then argues that even if it is assumed — as stated once in the bill — that the purpose of SB 9 is to “ensure access to affordable housing” statewide, SB 9 is not reasonably related or narrowly tailored to that purpose. SB 9 applies regardless of whether cities have identified sites to accommodate their state-determined share of the regional housing need and does not require the ministerially approved units or lot splits to be restricted for affordable housing.
Instead, SB 9 imposes a “one-size-fits-all” approach that will likely lead to more expensive housing rather than affordable housing. SB 9 is an unnecessarily broad measure that strips charter cities of their discretion to determine the location, density, and site characteristics of housing without any indication that eliminating such discretion will result in the construction of more affordable housing units.
Next steps
The Los Angeles County Superior Court accepted Cal Cities’ amicus brief for filing on Friday, May 5. A hearing on the arguments presented will likely occur within the next few months. Cal Cities will continue to report on developments in the case.
Cal Cities thanks Derek Cole and Tyler Sherman with Cole Huber LLC for authoring Cal Cities’ amicus brief. More information about the Cal Cities legal advocacy program is available online.
