In Coalition Advocating Legal Housing Options v. City of Santa Monica, 201 WL 357814, the California Court of Appeal held unconstitutional Santa Monica’s ordinance which restricted the creation of “second units” in single-family residential zones to units occupied by the property owners, the owners’ dependents, or caregivers for either the owners or dependents.
The California Legislature passed Government Code § 65852.2 to encourage local agencies to permit the creation of second units in single- and multiple-family zones. (A second unit is an attached or detached unit that provides complete independent living facilities.) A local agency can totally preclude second units only if it finds that the ban is justified by specific adverse impacts on the public health, safety, and welfare. In response to § 65852.2, the City of Santa Monica (City) passed an ordinance that allowed second units in single-family residential zones, but only if the person occupying the second unit was the property owner, a dependent of the property owner, or a caregiver of the property owner or his dependent. The Coalition Advocating Legal Housing Options and a member of that organization (collectively referred to as “Coalition”) challenged the ordinance as violating the rights to privacy and equal protection guaranteed by the California Constitution.
The California Court of Appeal first rejected City’s argument that, because the ordinance relates to purely “municipal affairs,” the ordinance prevails over Government Code § 65852.2.
The Court noted the general rule that, if a matter is of statewide concern, cities must yield to applicable general state laws. The California Legislature and courts have declared housing to be a matter of statewide concern; therefore, City must comply with Government Code § 65852.2, the state statute regarding the creation of second units.
The Court of Appeal next held that the ordinance violates the right to privacy guaranteed by the California Constitution. The Court noted that “zoning ordinances are much less suspect when they focus on the use than when they command inquiry into who are the users.” City of Santa Barbara v. Adamson, 27 Cal. 3d 123 (1980). The Court stated that, although the second unit allows independent living, it is nevertheless a part of the home. And, just as a person has the right to decide who lives in the home, that person has the right to decide who may live in the second unit. Thus, because City’s ordinance clearly restricts who may live in a second unit, the ordinance violates the right to privacy.
The Court rejected City’s argument that it had legitimate reasons for the occupancy restriction. However, according to the Court, the ordinance does little to preserve the character of the neighborhood, inasmuch as it would allow second units under some circumstances while excluding them under other circumstances. Furthermore, City had alternative means of accomplishing its objectives with little or no privacy impacts – it could limit the number of permits issued, and could control size, density, structures, and parking.
The ordinance also violates the equal protection clause of the California Constitution. Acknowledging that City’s zoning powers are broad, the Court of Appeal noted that the ordinance must bear a rational relationship to a legitimate state purpose. City argued that its purpose was two-fold – to preserve the character and integrity of single-family neighborhoods and to avoid an undue concentration of population and traffic. However, the Court could find no relationship between the status of the occupier of the second unit and City’s two stated goals. In other words, the identity of the person using the second unit has nothing to do with neighborhood character, and City could avoid undue concentration of population and traffic with an ordinance that applied evenly to all households.