Legal Update
May 30, 2024
The Superior Court of California Invalidates the HOME Act
Several cities in California successfully petitioned for a writ of mandate seeking the invalidation of California Senate Bill 9 (the HOME Act).
On April 22, 2024, the Superior Court of California for the County of Los Angeles granted the cities’ petition on the basis that SB 9 violates the California Constitution because the act is not “sufficiently narrowly tailored to … ensure access to affordable housing.”[i] City of Redondo Beach et. al, vs. Rob Bonta, in his capacity as California Attorney General, et. al. Superior Court of California, County of Los Angeles (Case No. 22STCP01143).
In short, the Court held that even if single family residential lots would presumably be more easily subdivided (by means of regulatory changes brought about by the HOME Act, as we discuss next), affordable housing may not result.
The HOME Act
Faced with skyrocketing median home prices, California lawmakers drafted, amended and brought about the passage of Senate Bill 9, the California Housing Opportunity & More Efficiency (HOME) Act. The HOME Act was authored and sponsored by a member of the California Senate, Toni Atkins, of San Diego, in an outside-of-the-box effort to increase by a significant number new affordable homes on lots previously zoned for single residential units. The state Legislature adopted the HOME Act in 2021 after declaring that affordable housing is a matter of statewide concern and that dense residential housing construction is necessitated to bring about additional affordable housing for low-income households.
At the heart of the HOME Act are measures to streamline review and approval for applications to divide lots previously used for one single-family home.[ii]
The HOME Act calls for applications to split residential lots to be submitted for processing in a streamlined way --without review or hearing-- pursuant to a “ministerial review” (i.e., a review process for development approval involving no personal judgment by a public official as to the wisdom of carrying out the project).
In order to streamline lot splitting approval, the HOME Act and the ministerial review that it mandates directs local agencies to apply only objective development standards (e.g., setbacks and heights), objective subdivision standards (e.g., minimum lot depths) and objective design standards (e.g., roof pitch, eave projections, façade materials, etc.) as well as other objective standards.[iii]
The HOME Act Litigation
A petition for an order invalidating the HOME Act was filed by five cities in California: Whittier, Redondo Beach, Torrance, Carson and Del Mar. These cities presented the question to the court as to whether the HOME Act violates the authority which the California Constitution grants to the cities to govern and manage their own municipal affairs, or the “internal business affairs of a municipality.”[iv] Under California law, if a city is a “charter city” then a doctrine known as the “home rule” doctrine bars the state Legislature from “interfere[ing] in the government and management of the municipality.”[v] There are limits to the “home rule” doctrine and a city in carrying out the mandates of its charter must give way to a state law which is “reasonably tailored to the resolution of a subject of statewide concern.”[vi]
On its way to invalidating the HOME Act, the court hearing the cities’ petition applied a four-step process and concluded that first, municipal land use and zoning regulations are in fact municipal affairs (the petitioning cities and the state were in agreement on this point); the HOME Act conflicts with local authority to regulate land use and zoning (the litigants also were in agreement); ensuring affordable housing is a statewide concern; and finally and most importantly, the “narrowly tailored prong”: the HOME Act is “reasonably related to ensuring access to affordable housing.”[vii]While taking the fourth step in its decision, the state deemed “affordable housing” to mean below market-rate housing (and not simply more affordable housing for all).
The Court held that just because via the HOME Act single family residential lots would presumably be more easily subdivided does not necessarily mean that below market rate housing would be made available “especially in economically prosperous cities”[viii]and so the requirement of ministerial approval of duplexes and urban lot splits lacked the necessary connection with below market-rate units.
With housing prices skyrocketing and the Court’s decision in favor of five cities (there are over 120 chartered cities in California; the HOME Act by its terms indicates that the law applies not only to chartered cities but general law cities as well), which are bound by the decision, the impact of its decision and whether it will be appealed by the Attorney General of California are unclear, but will be monitored.
[i] Ruling on Verified First Amended Petition for Writ of Mandate, Superior Court of California, County of Los Angeles (Case No. 22STCP01143), available via https://www.calcities.org/docs/default-source/news-articles/e100038299.pdf?sfvrsn=acca0f42_3/E100038299.pdf, accessed on May 22, 2024 (“Ruling on Verified First Amended Petition for Writ of Mandate”).
[ii] The HOME Act “require[s] a local agency to ministerially approve a parcel map for an urban lot split that meets certain requirements …” “Put another way, ‘Senate Bill 9 requires cities and counties to permit ministerially either or both of the following, as long as they meet specified conditions: A housing development of no more than two units (a duplex)[;] the subdivision of a parcel into two approximately equal parcels (urban lot split).” CA Gov. Code Section 66411.7(b)(1).” Ruling on Verified First Amended Petition for Writ of Mandate at 2.
[iii] SB9 Fact Sheet, California Department of Housing and Community Development, Housing Policy Development Division (Mar. 2022), available via https://www.hcd.ca.gov/docs/planning-and-community-development/sb9factsheet.pdf accessed on May 22, 2024.
[iv] See the Ruling on Verified First Amended Petition for Writ of Mandate at 4 (quoting Flagley v. Phelan (1899) 126 Cal. 383, 387).
[v] See the Ruling on Verified First Amended Petition for Writ of Mandate at 4 (quoting Ex Parte Brown (1903) 141 Cal. 204, 209).
[vi] See the Ruling on Verified First Amended Petition for Writ of Mandate at 5 (quoting State Building & Construction Trades Council of California v. City of Vista (2012) 54 Cal.4th 547, 556).
[vii] See the Ruling on Verified First Amended Petition for Writ of Mandate at 5-8.
[viii] Id. at 10