SB9 Isn't Dead in MB, But It May As Well Be

A few years ago, lots of people seemed to be rightfully worried about new legislation that would end single-family zoning in California.

SB9 overrides local zoning ordinances by allowing development of multiple units and/or lot splits regardless of local codes that restrict a property to single-family homes.

(We have much more about how SB9 works in our Sept. 2021 article, "The End of SFR Zoning in Manhattan Beach.")

Last week, a judge held SB9 to be unconstitutional as applied to “charter cities,” which includes Redondo Beach (one of the cities that sued), although not as to “general law” cities like Manhattan Beach.

(About 75% of California cities are "general law," not "charter" or "home rule" cities, meaning they are generally subject to state laws impacting municipal affairs.)

So, despite that "unconstitutional" ruling, is SB9 still a “threat” in Manhattan Beach?

Only theoretically.

There has been no real interest from Manhattan Beach homeowners in requesting the kinds of lot splits or dense development allowed under SB9.

A city staff report in late 2023 found that the total number of SB9 project applications in the city in the law's first 26 months was... ZERO.

That's one reason why our City Council, by a 5-0 vote, went ahead and enacted final ordinances late last year to implement SB9. There was virtually no controversy or public comment, because no one sees a threat.

What SB9 Offers/Threatens

The "big idea" of SB9 was to create incentives for small-scale breaches of SFR zoning – a little project here, a little project there – all driven by homeowners, not developers.

Perhaps, over time, we'd see novel new development that would only gently impact neighborhoods, but the increased density would start to redefine "normal" for suburban California.

In short, SB 9 allows:

- a chance to split one lot into two lots (as long as the resulting lots are at least 1200 sqft.)

- construction of 2 dwelling units per lot

- ADUs and Jr. ADUs to add additional density

You could see 4-5 units on one current SFR lot.

If anyone wanted to try.

Limitations of SB 9

In practice, SB9 doesn't apply to all of Manhattan Beach. Lines were drawn to push the effective SB9 zone more or less east of Vista Drive, such that most of the coastal Sand Section is exempt, while the Tree Section, Hill Section and East Manhattan mostly do fall under SB9.

The major restrictions are all in the original law:

• An owner who adds units and/or splits the lots must commit to living in one of the units for 3 years.

• Units that have served as rentals within the prior 3 years cannot be redeveloped with benefit of these new rules.

• Newly built units can't be used as short-term rentals.

(Naturally, there are more rules; we're trying not to make this too complicated.)

Once you got a good look at the restrictions, it was hard to imagine who would want to, or be able to, split a lot and/or develop additional units on an SFR lot.

In reality, the state law was much more watered-down, restrained and symbolic than revolutionary.

There are so many restrictions in the state law that MB city staff estimated that, at most, only about 3% of potentially eligible properties in suburban districts could see either lot splits or multi-unit development.

This limited reach may not reflect the full vision of the legislators behind SB9, who want to generate more housing supply. But they must have understood that without certain restrictions, a law like SB9 could create incentives for a giant wave of developer-driven lot splits and multi-unit builds within traditional single-family-zoned neighborhoods. Along the way, a lot of current rental housing supply would be destroyed.

They didn't want that – yet.

Hence the focus, at least to start, on mom-and-pop development projects – which simply have not taken off.

Why Is SB9 'Unconstitutional?' Can It Be Fixed?

As noted above, last week, LA County Superior Court Judge Curtis A. Kin found SB9 to be an unconstitutional imposition on "charter cities." Those cities are supposed to be free of state interference as to local affairs such as zoning, unless a state law is "narrowly tailored" to advance a specific "statewide concern."

The judge took a very tight reading of SB9's stated purpose of advancing "affordable housing."

The creation of (slightly) more housing supply might be a result of SB9, and more supply might possibly result in lower prices in a market. But nothing in the law specifies that any units be "affordable," as that term operates in law – meaning housing that may be purchased or rented below market rates. Therefore, per Judge Kin, SB9 can't survive, because it's not designed as an affordable-housing measure.

That problem could be overcome by subsequent court appeals or rulings, or even through legislative amendments to SB9.

Yet fixing SB9 so that it applies to charter cities won't really matter to Manhattan Beach.

What we're going to need to watch for is "fixes" to SB9 that actually threaten to make it effective, which can only mean loosening some of the law's current restrictions. Let's hope they don't open the floodgates to developers right away.