The dominant theory in housing policy in recent years is that the state’s decades-long undersupply of housing has pushed up the cost of rent and homeownership, and that building more housing — both market-rate and subsidized — will improve affordability. That was reflected in SB 9’s design, which allows for more homes to be built via lot splits. In contrast to state-subsidized affordable housing or deed restrictions that cap rent, the affordable housing created through SB 9 would be what housing policymakers call “naturally occurring.”

But the judge, Curtis Kin, ruled that the legislature’s intention — housing affordability — didn’t match up with the design. Because SB 9 doesn’t require any of the units constructed to actually be below-market-rate, it was not “reasonably related and sufficiently narrowly tailored” to ensuring access to affordable housing — and therefore unconstitutional.

The judge’s opinion echoed critics’ doubts that increasing supply actually boosts affordability.

“The decision confirms that most of these so-called housing affordability laws are a sham, and won’t result in much-needed affordable housing,” said Susan Candell, a Lafayette city councilwoman and proponent of the Our Neighborhood Voices initiative, which seeks to return local land use decisions back to cities.

The opinion is a victory for CalCities, a group lobbying on behalf of the state’s cities, which submitted an amicus brief arguing that SB 9 has stripped cities of their discretion to determine the location, density, and site characteristics of housing without any ensuring the construction of more affordable housing units.

But pro-housing advocates say the judge’s ruling relies too much on a narrow definition of housing affordability.

“It’s clear that the legislature intended for ‘affordable housing’ to mean the naturally affordable housing that happens with more production,” Sonnenfeld said. “But the ambiguity over the phrase ‘affordable housing’ is unfortunately causing some confusion in the courts. That could be easily fixed by the legislature.”

“SB 9 enables housing affordability by increasing supply of small starter homes, which makes all housing more affordable through the chain reaction effect,” said Ben Bear, CEO of BuildCasa, a startup which helps homeowners to split their lots under SB 9 and sell them to developers. “We’ve seen that SB 9 units can sell for 30-50% less per unit than other single-family homes due to increased density.”

Advocates hope the legislature revives an SB 9 clean-up bill proposed last year by Sen. Toni Atkins, a San Diego Democrat, that could also help to resolve this case.

Even Candell acknowledged that a simple clean-up to SB 9 could render the Los Angeles Court’s decision moot.

“We’ve lost the war,” she said. “We can’t undo all these laws one by one.”

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