A brewing battle in the California courts may lift San Jose from the mandates of a controversial law that ended exclusionary single-family zoning statewide.

The prospect has local experts shrugging and questioning what effect, if any, Senate Bill 9 has had on San Jose’s housing stock. The law has underperformed in new home approvals since it took effect in January 2022. A Los Angeles County judge last month deemed SB 9 unconstitutional in five Southern California cities. If the case is appealed and sustained by a higher state court, it could apply statewide — and be struck down in San Jose.

Land use consultant Bob Staedler said he’s surprised the ruling went down this way.

“The implementation of SB 9 has been underwhelming compared to the hype,” he told San José Spotlight.

Attorney General Rob Bonta told the Palo Alto Daily Post his office is considering all options. He did not respond to a request for comment.

Councilmember Peter Ortiz said the law — which allows homeowners to subdivide lots for new construction and build up to four homes, so long as each lot is at least 1,200 square feet — is needed.

“The bill’s provisions on upzoning are crucial steps toward creating more inclusive and affordable housing options for all,” he told San José Spotlight.

Since 2022, city officials have received 32 applications under SB 9 to split lots and approved seven of them. They have also received seven duplex applications and approved two.

Erik Schoennauer, a land use consultant, said the city planning department has received few SB 9 requests compared to accessory dwelling units (ADU).

“Most people who buy single-family homes want a single-family home. They’re not interested in creating a duplex or fourplex or whatever the law allows,” Schoennauer told San José Spotlight. “The other part of the equation is there isn’t a segment of the investment community that’s interested in those projects, it’s a lot of work and financial investment for relatively small benefit.”

Permit requests for ADUs, also known as granny units or backyard homes, have seen the opposite response with 3,000 permits issued since the city’s preapproved contractors program launched in 2019. More than 1,400 granny units have been preapproved.

Local experts have wondered whether ADUs are more attractive to property owners because of their cost-efficient approval process in San Jose.

Cheryl Wessling, spokesperson for the city planning department, said the low ratio of SB 9 approved applications relative to the number submitted is due to slow applicant responsiveness.

“Except for some SB 9 specific forms to complete, there is nothing different or slower about a SB 9 application than any other subdivision or duplex construction project,” Wessling told San José Spotlight.

But Schoennauer said it’s more than that. Officials saw SB 9 as overlapping with their own idea to upzone single-family homes with multi-unit housing on residential properties.

“It was an interesting debate when San Jose was contemplating Opportunity Housing because in my opinion both sides of the argument were wrong,” Schoennauer said. “The people in support of it promoted the idea that this will create affordable units … which is a reasonable argument. On the other side, NIMBY neighbors said you’ll destroy single-family homes and create chaos and so forth.”

Schoennauer said SB 9 has shown that neither scenario has come to fruition, and that it only revealed the financial challenges and lack of interest in building on up-zoned property due to high interest rates and stratospheric construction costs.

Councilmember Dev Davis said she’s not putting too much stock in the ruling until it goes to the state level. She said the case tells her she’s not alone in her qualms about the “erosion of local control.”

“We’ve planned for quite a bit of growth in our city — we have the housing element, the general plan,” Davis told San José Spotlight. “But we have not planned for many of our older neighborhoods that I represent to handle the increased sewer, and frankly, electricity, roads all those kind of issues that would be required for city services to keep up with that hodgepodge of density.”

Schoennauer said he supports the spirit of what the law is trying to achieve.

“I live in a mixed density community in downtown and know that building a duplex on a lot does not harm anybody. I don’t see the strides of the NIMBY fear mongering,” Schoennauer said.

Contact Brandon Pho at [email protected] or @brandonphooo on X, formerly known as Twitter.