California has a severe shortage of affordable homes, prompting legislators and policymakers to push for changes in local zoning rules that would increase the housing supply. However, many communities fiercely resist measures that could change the character of their single-family neighborhoods.

One such conflict triggered a legal battle that recently came before the California Court of Appeal (Yes In My Back Yard v City of Culver City).

In July of 2020, Culver City amended its zoning code. The changes included a reduction in the “floor area ratio,” or FAR, of new homes. The allowable maximum square footage for a primary residence was reduced to 45% of the size of the lot on which the home was built, from the former limit of 60%.

Thus, on a typical Culver City lot measuring 50 feet wide by 100 feet deep, or 5,000 square feet, a new home could measure no more than 2,250 square feet, rather than the 3,000 under the prior limit. That 750-square-foot reduction in size is the equivalent of two or three bedrooms.

The city said its goal was to discourage “mansionization,” or the construction of very large homes that it viewed as incompatible with existing nearby homes.

A pro-housing community organization called Yes In My Back Yard (YIMBY) sued the city in Los Angeles County Superior Court, asking the court to declare the ordinance unlawful and void.

YIMBY argued that Culver City’s new rule violated the state’s Housing Crisis Act of 2019 (“the Act”), codified as Section 66300 of the Government Code. The Act prohibits cities from enacting any policy that changes zoning of parcels to a “less intensive use” or reduces the “intensity of land use” below what was in effect on January 1, 2018.

The group said the lower FAR would reduce the city’s total residential capacity by 3 million square feet.

The city argued that the Act only prohibited zoning changes that reduced density, which the city interpreted to mean the number of units that can be built on a single lot. The ordinance also did not affect the ability of homeowners to construct an auxiliary dwelling unit, or ADU, the city said, and ADUs could add to the housing supply.

The trial court slammed the door on the city’s arguments. It ruled that the Act was clear and unambiguous in prohibiting such reductions in FAR. The lower FAR limit reduced the intensity of land use in Culver City, the court said, thus violating Section 66300.

It ordered the city to repeal the ordinance, stop enforcing the new rule, and pay YIMBY’s attorney’s fees of almost $132,000.

The city appealed, but it got nailed at the appellate level as well.

The city argued that the terms “density” and “intensity,” as used in the Act, were ambiguous. It cited specialized real estate dictionaries that defined “density” as meaning the number of housing units on a parcel, not the size of those units.

The appellate justices disagreed. They said the Act was aimed at preventing measures that reduced the “intensity” of land use, and that this included “reductions to height, density, or floor area ratio,” as well as “any other action that would individually or cumulatively reduce the site’s residential development capacity.”

Accepting the city’s interpretation would require the court to ignore the clear wording of the statute, the justices said. The Act’s express prohibition against reducing the intensity of land by reducing FAR should be “broadly construed so as to maximize the development of housing within this state.” 

In addition, they noted, contrary to the city’s position, there is no language in the Act saying that a reduction in land use must involve a reduction in the number of housing units.

While the Act does not directly increase the FAR of dwellings, the justices acknowledged that it may lead to bigger homes, as Culver City argued.

But if an increased FAR did result in homes with more bedrooms, they said, this could create additional residential capacity for multi-generational households, at a lower cost than building ADUs that require separate kitchens, heating, air conditioning, and other facilities.

The appellate justices also approved the trial court’s award of attorney’s fees to YIMBY, noting that California law allows this when a party’s action has “resulted in the enforcement of an important right affecting the public interest.”

The justices affirmed the trial court’s ruling and awarded YIMBY its costs on appeal.

By Laurie Murphy