Local Governments Can Override Initiatives That Could Decrease Housing Shortages

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California passed Senate Bill 10 in 2023 to allow counties and cities the right to override some local housing initiatives that enacted housing density caps. The bill authorizes the construction of up to ten units on a single-land parcel without requiring the review mandated under the California Environmental Quality Act. The law was challenged on grounds it was unconstitutional, but a Los Angeles County Superior Court Judge denied the petitioners’ request for a writ of mandate. Now, an appellate court has affirmed the right of cities to enact parcel-by-parcel ordinances that permit high-density housing without voter approval.

Government Code § 65913.5 is a temporary measure that ends on the last day of 2028. It says that “local governments may adopt ordinances to zone parcels for up to 10 units of residential density per parcel.” The AIDS Healthcare Foundation filed a petition that challenged the law because it expanded “initiative override provisions.” The City of Redondo Beach joined AHF’s petition that sought a writ to limit cities’ power to enact the ordinances that sponsors say will help address the State’s growing housing crisis.

A unanimous three-justice panel from Division Two of California’s Second Appellate Division affirmed the ruling of Los Angeles County Superior Court Judge James C. Chalfant on March 28. Chalfant said that the bill and Government code section “did not unconstitutionally invade the state’s initiative power because the Legislature possesses the power to invalidate existing local voter initiatives and to preclude the enactment of new voter initiatives and…Senate Bill 10 merely takes the smaller of step of allowing local legislative bodies to ‘override such initiatives upon a two-thirds vote.’”

The affirming appellate opinion was authored by Justice Brian M. Hoffstadt with concurrences by Presiding Justice Elwood Lui and Justice Victoria M. Chavez. Hoffstadt began the opinion by asking, “Does this legislation violate the initiative power enshrined in article II, section 11 of the California Constitution? We conclude that it does not.”

Justice Hoffstadt went on to explain that California’s housing crisis is “a matter of statewide concern,

and “Senate Bill 10 conflicts with (and hence preempts) local initiatives that make housing density caps mandatory.” He said the appellate court found the Senate bill gave the state preemptive authority so it can decide “whether to supersede local density caps and that this authority “is not constitutionally problematic.” Thus, the appellate court rejected the challenge to the Bill’s constitutionality and properly denied appellants’ petition for a writ of mandate, which would have required the state to cease its override power.

The appellants, AIDS Healthcare Foundation and the City of Redondo Beach, filed their petition for a writ of mandate just six days after Governor Gavin Newsom (D) signed the bill into law. AIDS Healthcare Foundation, which had been involved in “monitoring the initiative process for decades,” and the city wanted to block the bill, which the opinion characterized as coming from NIMBY (Not in My Backyard) pressure. The new Code section would no longer require “a vote of the people.” Hoffstadt went on to provide what he termed a “step-by-step analysis” that raised four key issues: (1) When can the State legislature displace local zoning and land-use laws? (2) Has Senate Bill 10 displaced local housing density laws? (3) Can the Legislature validly exercise its preemptive power over local voter initiatives? and (4) Do earlier-enacted laws prevent the Senate Bill from superseding local initiatives?

The first question regarding displacement of local zoning laws was answered by determining that the State’s housing crisis was a “matter of statewide concern,” and Senate Bill 10 was “reasonably related to addressing that concern.” The second issue regarding Senate Bill 10’s displacement of local housing density caps laws was found to be “inimical to Senate Bill 10.” Petitioner’s arguments to the contrary, including their citing of precedents that “implied preemption” by the Legislature of local laws, were not viable and not persuasive. Nor were suggestions to ask local residents whether they wish to override the caps, “thereby sidestepping any conflict.”

The third issue regarding the Legislature’s power to preempt local voter initiatives was also determined to support the state’s right of preemption because the law “leave(s) no doubt that our Legislature explicitly contemplated that Senate Bill 10 would be used to supersede local voter initiatives.” The last argument made by appellants required a review of previously enacted laws. Here, Hoffstadt wrote that even though the Legislature had the right to exercise its power of preemption, it did not do so. Rather, it “takes a more modest and novel approach of cloaking local legislative bodies with the mantle of state authority by granting those bodies some discretion on whether to supersede local laws…”

But did this modest approach make the Senate Bill unconstitutional? The opinion concluded, “It did not” because the Legislature’s actions were found to be permitted for three reasons: “precedents support (but do not dictate) the result,” giving local legislative bodies discretion is “ostensibly more solicitous of the initiative power” because it “does not nullify local housing density caps and does not prevent local voters from enacting new housing density caps” through initiatives. The opinion found that“The Bill is not constitutionally offensive” because it “left local voter initiatives intact unless and until they are superseded in a particular zoning decision rather than invalidating all local voter initiatives” and leaving resolution to local legislatures.”

The final issue related to previously enacted laws that prevented Senate action. Appellants arguments on this matter were also rejected because the “plain text of Government Code § 65913.5 lacks an exemption for “already-existing initiatives,” the Code does not “frustrate” the Legislature’s purposes, and there is no relevant precedent that would disagree.

Thus, the judgment of the trial court was affirmed. But that is not the end of this hotly-contested issue. Attorney General Rob Bonta, who was the original defendant in the case, issued a press release related to the Court of Appeal ruling. He wrote, “California is facing a housing crisis of epic proportions that will only be solved when every community is earnestly focused on addressing it…This week, I was proud to sponsor Assemblymember Buffy Wicks’ Assembly Bill 1893 to modernize and improve a key housing law, and facilitate the construction of new housing in cities and counties that do not have a legally required plan for meeting their community’s housing needs.”

He said the new law would “hold accountable jurisdictions that are failing to address the housing crisis….and the only way we’ll get there is if we all step up, together.”

Maureen Rubin
Maureen Rubin
Maureen is a graduate of Catholic University Law School and holds a Master's degree from USC. She is a licensed attorney in California and was an Emeritus Professor of Journalism at California State University, Northridge specializing in media law and writing. With a background in both the Carter White House and the U.S. Congress, Maureen enriches her scholarly work with an extensive foundation of real-world knowledge.
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