Senate Bill 9 (2021) requires a city or county to ministerially approve duplex units and/or the or the subdivision of one lot into two lots, in spite of contrary residential zoning (i.e., R1) requirements. This could lead to up to four homes where one currently sits. Fortunately, the bill does not apply to common interest developments. In a letter dated August 30, 2021 to the Senate Journal, Senator Atkins, the author of the bill, clarifies, “SB 9 would not override CID or HOA restrictions. Specifically, SB 9 is silent on the issue, meaning the bill contains no provisions that supersede HOA or CID governing documents. As we have seen with other housing legislation, SB 9 would have to contain an explicit and proactive provision to override those rules. This bill does not.” (See August 30, 2021 letter.)
Local Approval. Even if an owner were to apply for a lot split with the local governmental authority, and receive approval, it does not mean the association is obligated to aapprove it. Doing so would require an amendment to the CC&Rs regarding the number of properties in the development, assessment allocations, and annexation. Increasing the number of lots in an association would eventually impact parking, and increase the load on amenities. Theere is nothing in the Government Code obligating associations to approve lot splits. (Gov. Code § 65852.21; Gov. Code § 66411.7.)
Public Policy Arguments. Most, if not all, associations would likely oppose lot splits in their communities as a violation of their CC&Rs. Whether their opposition would be successful depends on who you talk to. The argument for lot splits to override CC&R restrictions is that public policy favors more housing. The argument against is that it destablizes neighorhoods. Zoning laws are in place to create safe, sustainable neighborhoods with reasonable traffic patterns and loads on local schools and amenities. Overriding zoning laws to increase density creates more traffic, parking, etc., which lower property values and destabilize neighborhoods. This is especially true for gated communities.
Ruled Unconstitutional. Many consider the law unconstitutional because it tramples on the authority of cities to regulate zoning and preserve single-family home neighborhoods. On April 25, 2024, a Los Angeles court ruled the legislation unconstitutional. Unfortunately, the ruling only applies to the five Southern California charter cities that were parties to the case: Redondo Beach, Whittier, Carson, Del Mar and Torrance. However, if the case is appealed, the appellate court’s ruling will apply to charter cities statewide. (City of Redondo Beach v. Rob Bonta, Case No. 22STCP1143 (2024).)
Reccomendation. When an association is confronted with this issue, the board should immediately seek legal counsel since short time limits apply for accepting or rejecting an architectural request.
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