The constitutional significance of charter cities’ Senate Bill 9 win

Five California charter cities recently obtained a trial court ruling granting their petition for writ of mandate challenging SB 9, a State law requiring cities to ministerially approve lot splits and duplexes within single-family residential zones. The State Attorney General is trying to present this as a narrow litigation victory for the Petitioner-cities on a single State law, but experienced government attorneys will agree this case means more. Against the backdrop of a wave of recent State laws aiming to address the statewide housing crisis yet eroding local control in the process, this ruling serves as a reminder that the State must respect constitutional limitations not only when regulating charter cities’ municipal affairs, but when passing all laws.

Firstly, it bears noting that the Petitioner cities – Redondo Beach, Carson, Whittier, Torrance, and Del Mar – are local government entities that have worked to create affordable housing in their respective communities. For example, while this lawsuit against SB 9 was pending, Petitioner City of Carson opened a remarkable 51-unit affordable housing complex, known as “Veterans Village,” where monthly rents run from $15 to $1,800 depending on need. So, the SB 9 lawsuit was not intended to block the creation of additional, affordable housing. Contrary to much of the reporting around this litigation victory, Petitioner-cities like the City of Carson are not “NIMBY cities” opposed to building more housing.

The Petitioners are charter cities that derive their local government authority from the California Constitution, and their city charters are on equal footing with the California Constitution and State statutes. Indeed, unlike their general law city counterparts, charter cities were specifically created – by voter approval of their charters – to secure a degree of autonomy from the State government.

Under the home rule provision of the California Constitution (Article XI, Section 5(a)), charter cities are authorized to exercise plenary authority over “municipal affairs” in their respective jurisdictions, free from any constraint imposed by the general law and subject only to constitutional limitation. However, in the event of a true conflict between a state statute reasonably tailored to the resolution of a subject of statewide concern and a charter city measure, the latter ceases to be a “municipal affair” to the extent of the conflict and must yield.

As we have seen, California has recently enacted a variety of laws to address the very real housing crisis that plagues the State. Many of these laws, like SB 9, purport to regulate charter cities’ municipal affairs (here, municipal land use and zoning) in the name of addressing matters deemed to be of statewide concern (here, affordable housing). However, well-established case law in this area has clearly held that for a state statute to supersede a charter city’s authority in regulating a municipal affair, the state statute must be (i) reasonably related to resolution of the matter of statewide concern that it addresses and (ii) narrowly tailored to avoid unnecessary interference in local government.

In abrogating a charter city’s authority, SB 9’s stated purpose was to ensure access to affordable housing. Any time the term “affordable housing” is used in state law, it refers strictly to below-market-rate, income-restricted housing, and its use in SB 9 is no different. Therefore, the Attorney General could not successfully argue that the statewide concern at issue in SB 9 was a general shortage of housing (e.g., the need to increase the overall supply of housing in the State to better meet the demand and thereby eventually curb housing costs). As Petitioners successfully argued in this litigation, there is no requirement that any SB 9 unit actually be below-market-rate or income-restricted.

Although the dispute at issue was limited to SB 9, the constitutional implications of this ruling are much broader. The ruling reaffirms the constitutional home rule powers of charter cities and serves as a reminder to the State that any time it seeks to enact a law superseding charter cities’ authority over municipal affairs, it must comply with the aforementioned constitutional test - even when addressing the housing crisis. As a result of this decision, the State will be required to amend SB 9 to meet these constitutional restrictions if it wishes to maintain applicability of any of the substantive requirements of SB 9 as to the Petitioner-cities. Furthermore, if the State appeals the trial court’s judgment, SB 9 could not only be held inapplicable to the five Petitioner-charter cities, but to all 120+ charter cities statewide.

Although the Attorney General is trying to present this as a narrow victory for the Petitioners on a single State law, the constitutional implications of SB 9’s invalidation are much broader than the State wants to let on. That SB 9’s raison d’être was to promote the creation of below-market-rate or income-restricted affordable housing – even though nothing in SB 9 required it – reflected a flagrant lack of regard on the part of the State legislature for the longstanding rights of charter cities and the will of the communities they serve. SB 9 amounted to an attack on the very concept of single-family zoning and was purportedly justified by a statewide concern that it did nothing to advance. But for the checks and balances provided by the court system, the State legislature would have been left to disregard and undermine the State Constitution’s home rule provision. By extension, charter cities’ autonomy from the State government, a power which was granted to them by the State Constitution and local voters, would no longer have any bearing in our governmental structure.

The recent slew of State housing laws has lost sight of the fact that local government agencies often know best what their communities need and how to best meet that need. Thousands of local elected officials and public servants across California work hard every day with the goal of improving their communities day by day. They spend many hours on complex land use, zoning, and yes, housing issues to make sure that development in their respective cities is done in a manner that is responsible and sensitive to local needs and that protects and promotes the public health, safety and welfare in their communities. In light of this ruling, the State legislature may decide to act more carefully, thoughtfully, and with a greater respect for these important local processes and authorities before attempting to supersede them in enacting future State legislation, whether on the housing crisis or otherwise.

That these five Petitioner-cities prevailed here is a small but mighty victory for our State Constitution, the will of the people, and the many core democratic values that we hold dear.