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Santa Monica Can Implement Housing Law Ruled Unconstitutional, City Attorney Says


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By Jorge Casuso

May 3, 2024 -- Despite being ruled unconstitutional by a Superior Court judge, Santa Monica can continue implementing a State law that allows multi-family buildings on single family lots, City Attorney Doug Sloan said Friday.

While the April 22 ruling by Los Angeles County Superior Court Judge Curtis A. Kin applies to charter cities like Santa Monica, it "is not binding on any other party except those involved in the litigation," Sloan wrote in an update on Senate Bill 9 (SB9),

The ruling also does not prevent Santa Monica from continuing to implement the law, which allows lots zoned for a single-family home to be split into two lots with two homes each without requiring a public process.

"Further," Sloan wrote, "the ruling does not prevent the City from following City Council’s direction to allow for additional units on parcels 10,000 square feet or greater to provide more housing opportunities in the R-1 single family zones."

Although the City Council could amend or repeal its SB9 ordinance, doing so would jeopardize the State's certification of Santa Monica's Housing Element, which must outline a plan to build 8,895 new housing units, 6,168 of them affordable, by 2030.

Such a move, Sloan warned, "could potentially affect our ability to comply with other programs by lessening opportunities for additional housing units and types in the R-1 residential zones."

The City would have to propose an alternate housing strategy for single family neighborhoods that would require amending the certified Housing Element.

If the proposal is rejected by the California Department of Housing and Economic Development (HCD) and the Housing Element falls out of compliance, "HCD may notify the Attorney General and refer the case for prosecution and impose fines upon the City," Sloan warned.

It also could make the City subject to additional "Builder's Remedy" projects under a provision in State law that allows developers to bypass Santa Monica's zoning code and general plan if a Housing Element has not been certified.

That is what happened in October 2022, when Santa Monica's biggest housing developer rushed plans into the City's development pipeline to build more than 4,000 units that required little public input ("City Officials Caught Off Guard by Flurry of Development Submissions," October 13, 2022).

In March 2023, the Council approved zoning changes that made its Housing Element compliant ("Council Takes Major Step to Meet State-Mandated Housing Quota," March 27, 2023).

In addition to opening the City up to penalties, lawsuits and further loss of control over development, amending the SB9 ordinance could possibly jeopardize Santa Monica's designation as a "prohousing" community, Sloan said.

The designation, granted by Governor Gavin Newsom in January, places Santa Monica among 36 California cities given "priority for resources to build housing to help meet the statewide goal of 2.5 million homes by 2030," according to the Governor's office.

Sloan said it is "currently unknown" whether the State intends to appeal the Superior Court decision or approve legislation to "address and remedy the narrow issue presented in the case, which would obviate the necessity for an appeal."

The lawsuit was filed by the Cities of Redondo Beach, Carson, Torrance, Whittier and Del Mar.

Sloan's update comes less than two weeks after Judge Kin found SB9 "is neither reasonably related to ensuring access to affordable housing nor narrowly tailored to avoid unnecessary interference in local governments ("Judge Rules Controversial State Housing Law Unconstitutional," April 24, 2024).

Since the ruling, "Santa Monica has received numerous questions as to how this affects the City," Sloan said.

"The City Attorney’s Office is continuing to monitor this issue along with the status of proposed legislation and will continue to keep the City Council and community apprised as we receive more judicial and legislative guidance."

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