The California Legislature’s effort to clear the way for small developments has proven controversial, as it is viewed by many as the state’s usurping of local control over development. The Town of Woodside recently reversed course on its blanket declaration that no parcel within its boundaries would be eligible for any development proposal under Senate Bill 9, after the Attorney General’s office issued a letter that such a prohibition violates state law. A similar notice of violation dated March 15, 2022 has been issued to the City of Pasadena’s Mayor Victor Gordo.

While Woodside attempted to exempt itself from SB 9 by declaring the entire town a habitat for mountain lions, Pasadena sought to evade SB 9 by declaring all landmark districts within the city exempt from SB 9 and then exploring the creation of a citywide historic overlay district that would presumably exempt the city from SB 9. In their March 15 letter, Deputy Attorney General Matthew T. Struhar advises that the urgency ordinance adopted by the city on Dec. 6, 2021 to broadly prohibit the application of SB 9 to any parts of the city designated as a “landmark district” (1) failed to meet the legal requirements for urgency ordinances, (2) is inconsistent with SB 9, which does not exempt landmark districts, and (3) potentially violates the Housing Crisis Act.

SB 9’s Exemption for Historic Properties

In broad terms, SB 9 generally allows up to four units to be built on a property zoned for a single-family home. Homeowners taking advantage of the new law typically seek to split large lots and build a new, single-family home on the vacant parcel, thereby creating new homes in existing neighborhoods. More specifically, SB 9, codified at Government Code sections 65852.21 and 66411.7, requires ministerial approval (without discretionary review or a hearing) of (1) a proposed housing development containing no more than two residential units within a single family residential zone, and (2) a parcel map for an urban lot split within a single family residential zone to create no more than two new parcels of approximate equal size, with certain exceptions. Relevant to Pasadena’s ordinance, SB 9 provides that ministerial approval under SB 9 is not mandated if a proposed development is located within a historic district or on property included on the State Historic Resources Inventory, or within a site designated or listed as a city or county landmark or historic property or district pursuant to a city or county ordinance.

The City’s “Urgency” Ordinance Is Invalid

On Dec. 6, 2021, Pasadena adopted Urgency Ordinance No. 7384 to prohibit the application of SB 9 to any parts of the city designated as a “landmark district.” The staff report prepared for the adopting of the ordinance expressly described the purpose of the ordinance as “protect[ing], within the bounds allowed by Senate Bill 9…the erosion by the State Legislature of the City of Pasadena’s many efforts in recent years to increase housing supply as part of a more holistic community planning strategy, while maintaining the unique character of its established neighborhoods.” The Attorney General’s Office articulated three primary reasons why the city’s ordinance cannot stand.

First, the city failed to make the requisite findings for an urgency ordinance under Government Code section 65858. Adoption of the urgency measure required making findings, supported by substantial evidence, that (1) multifamily housing projects would have a significant, quantifiable, direct, and unavoidable impact [on public health or safety], based on objective, identified written public health or safety standards, policies, or conditions; (2) the interim ordinance is necessary to mitigate or avoid that impact; and (3) there is no feasible alternative to satisfactorily mitigate or avoid that impact as well or better, with a less burdensome or restrictive effect, than the adoption of the proposed interim ordinance.

The Attorney General’s letter expresses that nothing in the record provides written findings that SB 9 projects would have a significant adverse impact on public health or safety, let alone substantial evidence of a significant, quantifiable, direct, and unavoidable impact based on objective standards and criteria in place at the time the ordinance was adopted. Conclusory statements regarding health, safety, and welfare do not meet the requirements of Government Code section 65858(c) and therefore, the ordinance is invalid as a matter of law.

Second, the ordinance prohibits the development of SB 9 duplexes in the city’s “landmark districts.” That prohibition is inconsistent with SB 9, which exempts only SB 9 projects “on…or within a site that is designated or listed as a city or county landmark or historic property or district pursuant to a city of county ordinance.” The exemption is to be narrowly construed to exclude “landmark districts” from the exemption “so as to not undermine the objectives of SB 9.”

Noting the distinction between the city’s less stringent process for the creation of landmark districts, which are not dependent upon the historic value or properties, and historic districts, as well as “local efforts to create new ‘landmark districts’ specifically for the purpose of avoiding SB 9,” the Attorney General’s Office deemed the ordinance inconsistent with SB 9 on its face and contrary to the law.

The letter goes on to state that by banning duplex housing in its landmark districts, the ordinance may also violate the Housing Crisis Act, and that its sister agency, the Department of Housing and Community Development, would contact the city with its own inquiry.

Finally, the letter concludes that the city cannot avoid the application of SB 9 by declaring itself a historic district of exempting specific plan areas, pointing out the obvious–that this would simply render SB 9 ineffective.

As of the date of this writing, the city has not formally responded to the AG’s letter.

For a discussion on the adoption of urgency legislation, see CEB’s California Land Use Practice, § 4.35 and The California Municipal Law Handbook, § 1.240.

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