LA Superior Court Strikes Down SB 9 – Housing Approvals: A Lesson in Legislative Drafting

On April 22, 2024, a Los Angeles Superior Court judge struck down Senate Bill 9 (Atkins), which was enacted in 2021 as Chapter 162. SB 9 dealt with approvals for housing development. According to the Assembly Floor analysis, SB 9 requires ministerial approval of housing developments with two units (duplexes) and subdivision maps that meet certain conditions, and increases the length of time that cities and counties can extend the validity of existing subdivision maps.

In addition, the bill included findings that changes proposed by SB 9 address a matter of statewide concern rather than a municipal affair and, therefore, apply to all cities, including charter cities. Section 4 of the bill provides:

“The Legislature finds and declares that ensuring access to affordable housing is a matter of statewide concern and not a municipal affair as that term is used in Section 5 of Article XI of the California Constitution. Therefore, Sections 1 and 2 of this act adding Sections 65852.21 and 66411.7 to the Government Code and Section 3 of this act amending Section 66452.6 of the Government Code apply to all cities, including charter cities.”

Five California cities successfully sued Attorney General Rob Bonta to prevent enforcement of SB 9. According to the judge’s written decision, “Petitioners contend that SB 9 violates the California Constitution because it is neither reasonably related to its stated concern of ensuring access to affordable housing nor narrowly tailored to avoid interference with local government.” 

The trial court judge ruled that, “because the provisions of SB 9 are not reasonably related and sufficiently narrowly tailored to the explicit stated purpose of that legislation – namely, to ensure access to affordable housing – SB 9 cannot stand.” The court explained that the principal question presented “is whether SB 9 violates the authority granted to charter cities under the California Constitution to govern and manage ‘municipal affairs’.” All five cities are charter cities (as opposed to general law cities).

Article XI, Section 5(a) of the state Constitution allows charter cities to legislate with respect to municipal affairs, while general law cities are subject to control by statutes enacted by the Legislature. And, with respect to municipal affairs of charter cities, the Legislature is prohibited from “interfering in the government and management of a municipality.”

However, the Legislature can override the charter city’s power to govern its municipal affairs when the Legislature enacts a statute that is “reasonably tailored to the resolution of a subject of statewide concern.” In helping the judicial branch determine whether a state statute can affect a municipal affair, the California Supreme Court developed a 4-part test to meet, which the trial court analyzed in its 12-page decision.

The court explained, “a critical question presented in the instant writ petition is whether the explicitly stated intent found in the text of SB 9 (i.e., providing affordable housing) should be deemed the relevant statewide concern or whether the Court may look elsewhere to identify a different statewide concern (i.e.., increasing housing supply) purportedly meant to be addressed by SB 9, notwithstanding what the Legislature said. Put another way, can the statewide concern unambiguously expressed in section 4 of SB 9 be reformulated when that concern fails the fourth step of the inquiry?” In response to this question it posed, “the court finds that the answer is no.”

As a matter of legislative drafting, the court explained that “the Legislature’s intent in section 4 is unambiguous. The Legislature plainly declared that the statewide concern addressed by SB 9 is ‘ensuring access to affordable housing.’ The court presumes that the Legislature meant to address affordable housing because that is what the Legislature said, not some other statewide concern.”

Moreover, the court stated that a court cannot “reformulate the Legislature’s explicit declaration of statewide concern in contravention of its plain language in section 4 of SB 9.” Finally, the court ruled that “SB 9 is neither reasonably related to ensuring access to affordable housing nor narrowly tailored to avoid unnecessary interference in local governance. SB 9 is therefore unconstitutional as violative of the ‘home rule’ doctrine.”

Why is this court decision a lesson in legislative drafting? Because it reiterates that a statute, as well as the bill’s “plus sections” (such as the statewide concern finding in section 4 of SB 9), will be given their usual and ordinary meaning by a court. As a result, when the Legislature makes a finding and declaration to justify the application of a statute, it must be clear, consistent, and comprehensive in its declaration.

In the future, for example, more detailed findings would likely be of benefit to ensure that the Legislature provides an appropriate basis for a court to find as it intends. Instead of short, conclusory statements, a more expansive explanation would be a better approach to take. And, the bill analyses of such measures should ensure that the bill language and committee analysis complement each other.