Winning Attorney Reflects on Issues Behind Appeal Court Ruling

(The following thoughts were submitted by Attorney James Isaacs at the request of The Lookout)

This Court decision is an important one of Constitutional dimension. The Appellate Court has expressly chosen to enforce rights of privacy and equal protection that are fundamental to our society. It could have chosen a narrower, statutory grounds to strike the illegal portion of Santa Monica's second unit ordinance. It could have relied on Fair Housing laws or California's second unit ordinance. But it did not do any of that. Instead it went straight to the Constitution.

The Court of Appeal has sent a loud message: Santa Monica has no business regulating the types of people allowed to live in various types of housing. With very limited exceptions, people are free to choose with whom they live, including the context of a second unit/main house joint living arrangement. That is the privacy rights analysis. And choosing the types of citizens who qualify to live in a second unit or other type of housing, when favoring relatives of the owner, violates equal protection rights. This is basically what the Court has held. And the Court ruled unanimously.

Standing alone, the Constitutional ramifications of this decision are very important. The City must follow state housing law and obey the Constitution. The City did not do so and has been placed under judicial authority. The trial court has been ordered to issue an injunction banning enforcement of the illegal portion of the City's ordinance. That is the part that regulated the type of people allowed to live in second units.

Of course, beyond the constitutional principles involved, this decision should lead to some new housing.

This decision should allow legalization of "bootleg" units, with potentially life-threatening code violations fixed in the process. Everybody knows some units exist -- often based on garage electrical systems not designed for human habitations. It is much better to have them exist after the permit process than as it is now -- without inspection, and often with serious code violations. Fix the code violations, perhaps make the owner provide off-street parking, and you have a better situation than with a bootleg unit. And that is better for the neighborhood, too.

The Coalition Advocating Legal Housing Options certainly hopes the city does not now try to ban second units across R-1 zones. Here the Court of Appeal sent another message indicating that the City should not try to do so, at least on the type of evidence that the City tried to use in this case. If the City were to try to ban second units now, it would have to prove real world health and safety harms would result from second units.

What makes a second unit a "health and safety" danger compared to any other type of living quarters? Santa Monica is on the record as favoring increases in the housing stock to help alleviate a regional housing shortage. That goal is stated in its formal Housing Element, required by state law. Why does a second unit create traffic, compared to any other form of housing? We think it will be impossible for the City to prove that second units cause any special types of health and safety problems.

And this Court has been clear that it understands this issue -- it even quoted parts of the Housing Element against the City. From here forward, anecdotal evidence based on homeowner concerns will not support a ban on second units in Santa Monica. Such evidence will not meet muster under state law, particularly under the circumstances present here.

We hope the City does not try the "spike the cannon" approach in reaction to this Court's powerful opinion. An reactionary effort to ban all second units in the R-1 zone would backfire.
Lou Moench and the CALHO group worked tirelessly to avoid litigation and work out a fair and constitutional approach to implementing second units in Santa Monica. We are willing to meet with concerned NOMA leaders or others and to participate in any process, but that may not be necessary.

The Court has left standing the balance of Santa Monica's otherwise good ordinance. The ordinance heavily regulates and controls second units. No huge influx is expected. There are all kinds of protections regulating height and size and style. If an unexpected problem comes up, it can be addressed by additional regulation.

In sum, the City has lost a major decision, but its citizens have won a major victory in Constitutional terms. The Court expressly found Santa Monica to have expressly violated core Constitutional rights that the great majority of its residents and certainly all of its council-persons hold dear. Nobody should be barred by "status" issues from living in any particular type of housing.

The City now faces liability for significant costs and attorney fees as well. Still, all concerned can benefit from this decision by reaffirming a dedication to implementing state housing law. This should happen in a Constitutional fashion, based on good faith analysis. Xenophobic fears that a comparatively modest number of second units will destroy our City are simply unwarranted. Strategies to placate political constituencies need to be modified and put in the context of what has happened on a Constitutional level.

All of our neighborhoods will be protected if everyone follows the letter and spirit of this Constitutional decision. That is the way to protect neighborhood character.