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Law Allowing Local Governments to Override Initiative-Based Zoning Restrictions Upheld
Court of Appeal Says 2023 Statute Does Not Violate State Constitutional Initiative Provision
By Kimber Cooley, Staff Writer
Div. Two of this district’s Court of Appeal has held that a 2023 state statute allowing counties and cities discretion, on a parcel-by-parcel basis, to override local housing density caps—including those adopted by local voters’ initiatives—does not violate the state Constitution.
“Does this legislation violate the initiative power enshrined in article II, section 11 of the California Constitution?” Justice Brian M. Hoffstadt of Div. Two asked.
“We conclude that it does not” he answered, explaining:
“We so conclude because the housing shortage is a matter of statewide concern, because Senate Bill 10 conflicts with (and hence preempts) local initiatives that make housing density caps mandatory, and because Senate Bill 10’s more narrowly tailored mechanism of cloaking counties and cities in the mantle of state preemptive authority so that they may decide whether to supersede a local density cap on a parcel-by-parcel basis—rather than effecting a wholesale invalidation of all local density caps in every county and city—is not constitutionally problematic.”
The opinion, filed on Thursday and made public on Friday, affirms an order by Los Angeles Superior Court Judge James C. Chalfant denying a petition for a writ of mandate. Presiding Justice Elwood Liu and Justice Victoria M. Chavez joined in the opinion.
In an attempt to ease what it describes as “the severe shortage of housing at all income levels in this state,” the Legislature enacted Senate Bill 10 allowing local governments to “upzone” parcels that are subject to density restrictions to 10-unit apartment buildings in an expedited fashion as long as the parcel is located in either a “transit-rich area” or an “urban infill site.”
Sen. Scott Wiener, D-San Francisco area, authored the bill which created Government Code §65913.5.
Six days after Gov. Gavin Newsom signed the bill into law, AIDS Healthcare Foundation (“AHF”)—an organization that expended financial resources lobbying for the removal of initiative-override provisions in the bill—filed a petition for a writ of mandate against the State of California and Attorney General Ron Bonta.
The City of Redondo Beach, whose voters had adopted an initiative limiting the City Council’s power to enact parcel-by-parcel ordinances allowing for high housing density without voter approval, joined as an additional petitioner in the operative petition.
The petition sought a writ directing the state to cease enforcement of §65913.5, injunctive relief enjoining the state from enforcing the code, and a declaration that the provisions of the section permitting local government to disregard the limitations of local initiative measures violates the right to initiative reserved to the people in the Article II §11 of the California Constitution.
Chalfant denied the petition and granted declaratory relief in favor of the state, writing:
“The court declares that SB 10 is a lawful preemption of local initiative power that delegates exclusively to local legislative bodies the discretion to adopt an ordinance zoning up to ten units of residential density per parcel if the parcel is located in a transit rich area or an urban infill site, and to override any contrary local zoning initiative if the ordinance is adopted by a 2/3 vote.”
Statewide Interest
Hoffstadt noted that the state Constitution grants state laws supremacy over nearly all local ordinances enacted by counties and cities, but he said “there is a wrinkle” in this general rule involving charter counties and charter cities, which enjoy “home rule.”
The justice explained that a state law only supersedes an ordinance enacted by a charter city or county if the subject matter of the state law is of statewide concern. Because SB 10 affects all of California, including charter cities and counties, a matter of statewide concern must be implicated, he said.
He found that although land use and zoning issues have historically been a function of local government under the police powers granted by the state Constitution, the issue of ensuring affordable housing has been a matter of statewide concern for decades.
Relying on basic supply-and-demand principles, Hoffstadt reasoned that the supply of housing is linked to the affordability of housing across the state. He wrote:
“We hold that the shortage of housing in California addressed by Senate Bill 10 is a matter of statewide concern, and that the statute’s grant of discretion to local legislative bodies to supersede locally enacted housing density caps is reasonably related to addressing that concern.”
Hoffstadt explained that in order for a state law to preempt a local ordinance, a conflict must exist between the two. He rejected arguments by the city and AHF that no such conflict exists in the present instance, saying:
“[P]etitioners contend that local housing density caps do not conflict with Senate Bill 10 because Senate Bill 10 does not demand what the caps prohibit; Senate Bill 10 does not require local legislative bodies to supersede the density caps, petitioners explain, but rather just gives them the discretion to do so.”
Rejecting their limited view of what constitutes a conflict, he said:
“[T]his contention treats the first type of conflict preemption—that is, when the local law says, ‘You cannot do X,’ and the state law says, ‘You must do X’—as if it is the only type of conflict preemption…it is not.”
Hoffstadt continued by saying:
“By granting local legislative bodies the discretion whether to supersede local housing density caps, there will, by definition, be instances in which a local legislative body making a decision as to a specific parcel will elect not to supersede the applicable density cap….But this result…does not somehow erase the fundamental conflict between a local legislative body having some discretion to supersede those caps (as it does under Senate Bill 10) and having no discretion to supersede (as it does under the local law).”
Declining the take petitioners’ suggestion that the bill’s mechanism be swapped out for a parcel-by-parcel decision by the voters, he wrote that the court “respectfully decline[s] petitioners’ invitation to neuter Senate Bill 10.”
More Exacting Standard
The jurist acknowledged that preemption is more difficult in the context of laws enacted by voter initiative and wrote:
“Unlike laws enacted through the usual legislative process, laws enacted by voter initiative may be altered only in accord with the terms for amendment set forth in the initiative or, if none are set forth, by a further vote of the electorate.”
However, he explained that despite the deference to voter-approved initiatives, preemption may occur if there is a clear showing of legislative intent to do so and found that SB 10 clearly indicated its intent to displace local housing density caps adopted though voter initiatives.
The fact that bill took a less drastic approach than a nullification of all local housing density caps by granting local authorities the discretion to supersede voter-initiatives regulating housing density does not undermine its constitutionality, he said, adding:
“[P]etitioners assert that upholding Senate Bill 10 will pave the path to the invalidation of all local voter initiatives. Given the gamut of constitutional analysis that a state statute affecting local initiatives must run—as this opinion vividly illustrates—we disagree that the proverbial sky is falling.”
The case is AIDS Healthcare Foundation v. Bonta, B321875.
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