Will Housing Victory Last?

SB 9 has been called the single family zone busting law. It allows single family lots to divide in two and put two units on each new lot. That’s four units where currently only one is allowed by Del Mar zoning. The state’s rationale for imposing this new law on all cities? We need more affordable housing and this will further that goal. But, last month a Superior Court judge ruled SB 9 unconstitutional as applied to Charter Law cities like Del Mar in a case brought by the City of Del Mar and 4 other Charter Law cities. This is good news for those who favor local control of zoning matters.

The state legislature adopted SB 9 in 2021 declaring the express purpose that “…furthering access to affordable housing is a matter of statewide concern…”  The court acknowledged the validity of this goal but concluded that nothing in SB 9 was directly tailored to achieve that goal, as it had no requirements that any of the new housing be affordable. The court concluded that merely increasing density was not enough to show that SB 9 would actually produce affordable housing.

In Del Mar, even the smallest ADU can rent for more than the standards for “affordable” housing. SB 9 had the potential to greatly increase density in Del Mar but with no new affordable housing. Del Mar’s Planning Commission and City Council were frustrated by SB 9. That’s why the Del Mar SB 9 ordinance recommended by the Planning Commission and adopted by the City Council requires at least one of the SB 9 units to actually be affordable. Del Mar’s SB 9 ordinance is currently pending approval at the Coastal Commission.

What’s likely to happen next? First, it seems likely the state will appeal the ruling, so it could be a year or more before the dust settles in court. Second, it seems Del Mar can revisit the issue and see if it wants to revise its ordinance pending at the Coastal Commission. Third, the Legislature may adopt an amendment to SB 9 to “fix” the problem identified by the court. We’ll need to wait and see how all this unfolds. In the meantime, take a moment to celebrate one small victory in the ongoing fight to retain local control.

Click here to read the court opinion (PDF)

This article reflects my personal views and does not necessarily reflect the views of the City of Del Mar or of my council colleagues.