Senate Bill 9 hits a legal road bump

One part of California’s efforts to reduce its housing crisis is going to take a little longer.

The landmark 2021 housing law Senate Bill 9 hit a road bump in court.

Simply put, Senate Bill 9 allows owners of single-family-zoned lots to subdivide their lots and build two homes per lot. As explained by editorial board member Steven Greenhut in 2021, “This is a decidedly market solution. Free markets mean that individual investors decide what to build, not government planning officials. By reducing excessive restrictions, the profit motive will encourage people to build more housing.”

The aim of SB 9, ultimately, is to legalize housing construction in more areas of the state so that the market can better meet the high demand for housing.

But on April 22 Los Angeles Superior Court Judge Curtis Kin ruled SB 9’s provisions cannot stand because they are not “narrowly tailored to the explicit stated purpose of that legislation — namely, to ensure access to affordable housing.”

The case involved five charter cities as plaintiffs: Redondo Beach, Carson, Torrance, Whittier and Del Mar. Under state law, charter cities enjoy supreme authority over their “municipal affairs.” Currently, of the state’s 478 cities, 121 are charters. They generally are larger cities, such as Los Angeles, Anaheim, Santa Ana, Huntington Beach, Riverside and San Bernardino. By contrast, the 376 “general law cities” operate directly under state law and are not affected by the judge’s decision.

The problem Kin had with SB 9 related to how “affordable housing” is defined, according to Matthew Lewis, director of communications at the pro-housing California YIMBY. YIMBY stands for “Yes in My Back Yard.”

Lewis explains there are two ways people look at affordable housing, and “people confuse them and conflate them all the time.”

Most people think promoting affordable housing just means all ways of achieving housing affordability, such as subsidized housing, building more units or loosening restrictive building codes to allow for more housing to get built.

But an alternate view is to equate “affordable housing” with subsidized housing. Judge Kin used this latter definition. In the judge’s words, he found Attorney General Rob Bonta, who defended SB 9, presented no evidence the bill “would result in any increase in the supply of below market-rate housing,” meaning subsidized housing.

But that presents a problem, Lewis said, because the goal of SB 9, and of pro-housing state and local policies in general, isn’t just to increase subsidized housing, but all housing. Greater supply of all types is needed to meet the demand. Simple as that.

This is especially true considering that the state’s population decline of 2020-22 has ended. The Department of Finance on April 30 reported the Golden State’s population rose by 67,000 last year. More people need more housing.

What may be needed is for the Legislature to revisit SB 9’s wording to make it clear it applies to all housing in the state, not just subsidized housing.

However, for now Lewis urged, “I think it’s premature to talk about legislation until the legal process has finished winding its way through the system.”

We see this as just a delay. Legal definitions are important. If Judge Kin’s ruling stands, then the Legislature will have to enact a fix.

The bottom line is that if California is ever going to have more affordable housing, it will need more housing. That’s a basic economic reality.