Bonta Files Brief in Defense of State Housing Density Law

Photo by Marcus Lenk on Unsplash

By David M. Greenwald
Executive Editor

Oakland, CA – As California is in the midst of a “housing supply and affordability crisis of historic proportions,” back in September the AIDS Healthcare Foundation filed a lawsuit alleging that SB 10 is unconstitutional. The City of Redondo Beach later joined the lawsuit.

On Friday, AG Rob Bonta filed a brief in defense of Senate Bill 10 (SB 10), which allows local governments to rezone certain neighborhoods for denser housing, irrespective of local restrictions.

SB 10 was part of a package of bills passed by the legislature last year to alleviate California’s housing crisis. Following its passage, a Los Angeles-based nonprofit filed a lawsuit in the Los Angeles Superior Court, arguing that the law is unconstitutional.

In this case, the petitioners contend SB 10 unconstitutionally “impinges on the local initiative power,” but Bonta’s filing argues the “Court should deny the petition for multiple reasons.

“As California families continue to struggle with the sky-high cost of housing, tackling our state’s housing crisis is a top priority,” said Attorney General Bonta.  “Laws like SB 10 are critical to address California’s housing shortage and affordability crisis. We believe this law is constitutional, and we will continue to vigorously defend it in court.”

The legislature found, “California is in the midst of a housing crisis.”

Moreover, “Only 27% of households can afford to purchase the median priced single-family home [and] “[o]ver half of renters, and 80% of low-income renters, are rent-burdened, meaning they pay over 30% of their income towards rent. At last count, there were over 160,000 homeless Californians.

“A major cause of our housing crisis is the mismatch between the supply and demand for housing,” the legislature found.  The mismatch between supply and demand “involves not just the amount of housing, but the type of housing being built. In recent decades, almost all of the housing built in California was large single-family development (which can be an inefficient use of land) and mid- and high-rise construction (which are expensive to build).”

According to the California Department of Housing and Community Development, California will need an estimated 1.8 million new homes by 2025 in order to meet housing demand. Yet on average only 80,000 new homes are built in California each year. Infill development—the development of vacant or underutilized plots in existing urban areas—is critical for local governments to address the housing crisis and meet state housing goals.

But as local governments look to increase the housing supply in their areas, many have found themselves hampered by state and local laws limiting rezoning in certain areas. SB 10 makes it easier for local governments to zone for infill development, specifically, smaller, lower-cost housing developments of up to 10 units, if they choose.

In their brief, Bonta argues, “Petitioners’ claims are not ripe. Petitioners do not identify any local initiative that has been overridden under the auspices of SB 10. Instead, Petitioners assert only that some hypothetical city or county might enact a local law utilizing the provisions of SB 10, which might in turn contradict some local initiative, which might in turn unconstitutionally restrict those local voters’ initiative power.”

The brief continues, “Without any concrete facts to support Petitioners’ facial challenge, this Court is being asked to issue an advisory opinion about the hypothetical future operation of a law. There is no reason to decide Petitioner’s constitutional claim in a vacuum; any future actions under SB 10 that Petitioners believe to be unconstitutional can and should be evaluated in context.”

Second, even if the court were to be able to reach the merits of this case, Bonta argues that the claims fail.

“Petitioners’ opening brief engages in a detailed analysis of the initiative power, but puzzlingly omits any substantive discussion of the actual issue in this case—whether the Legislature can preempt local ordinances,” Bonta argues.

However, “It can, as courts have repeatedly held. Numerous cases hold that the Legislature can restrict, and even withdraw, the local initiative power to address matters of statewide concern. That is precisely what the Legislature expressly indicated its intent to do with SB 10, by allowing local governments to override local restrictions imposed by local initiative to zone for denser housing in transit-rich areas and urban infill sites.”

Instead, the AG argues, “SB 10 is a valid exercise of the Legislature’s power to preempt contradictory local laws. Here, SB 10’s grant of authority to local governments preempts any contradictory local ordinance limiting such authority, including those enacted by voter initiative.”

They add, “Petitioners may disagree with the Legislature’s policy decision to permit local governments to enact denser housing projects, but that policy is consistent with the California Constitution and decades of precedent.”

About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

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20 Comments

  1. Keith Olson

    “Only 27% of households can afford to purchase the median priced single-family home

    This is going to get much worse as currently the average rate on a 30-year fixed mortgage has popped to 5.12% and that’s before the Federal Reserve has even really started their hawkish interests rate hikes.  So far they have only hiked rates a quarter of a percent but much steeper hikes are coming in order to try and tame inflation.  A recession is coming, both economic and housing,  thanks in large part to the Biden administration’s policies.

  2. Ron Oertel

    Meanwhile, some cities are fighting back:

    Cities around the state are trying to circumvent California’s new law allowing duplexes to be built on properties previously zoned as single family.

    In fact, Attorney General Rob Bonta has intervened twice already. Pasadena carved out exemptions for landmark districts within the new law, which could apply to vast swaths of the city. Bonta told the city last month they could face a lawsuit if they didn’t reverse course. In a response letter, the city’s mayor said they are in full compliance with the law.

    Except from the letter from the city of Pasadena to Bonta:

    This is not about the City of Pasadena preventing affordable housing, nor is it about a failure to comply with the law. Rather, these criticisms are politically motivated and not supported by the facts. I am attaching for your information the City’s formal response to the Attorney General. You will find our response to the Attorney General’s letter is fact based, legally supported, and yes, forceful, because we will not allow Sacramento officials or media opinion makers to attack and mis-define us, as they do not know our City—the Pasadena that we all cherish.

    Going forward, I respectfully encourage our Attorney General to get to know us before taking to Twitter to wrongfully and unfairly tarnish Pasadena’s good name—by now, we should all understand that governance by Twitter is ineffective.

    https://www.cityofpasadena.net/city-manager/wp-content/uploads/sites/2/Pasadena-Mayor-and-City-Response-to-AG-Bonta.pdf?v=1649347974928

    The state is trying to force a lot on us,” Dickenson said. “Where there are opportunities to stick closer to what we typically do, we should take advantage of those opportunities.”

    https://www.marinij.com/2022/04/12/marin-planning-board-urges-tough-line-on-housing-mandate/

    And despite what state officials are trying to force upon cities, the state’s population is no longer growing in the first place. How does the state’s efforts make sense, in light of this?

    “California appears to be on the verge of a new demographic era, one in which population declines characterize the state,” PPIC demographer Hans Johnson writes in a new analysis. “Lower levels of international migration, declining birth rates, and increases in deaths all play a role. But the primary driver of the state’s population loss over the past couple years has been the result of California residents moving to other states.”

    https://www.msn.com/en-us/money/markets/californias-shrinking-population-has-big-impacts/ar-AAW3N5T?li=BBnbfcL
     

  3. Ron Oertel

    Here’s one more:

    LOS ANGELES, CA — Four Southland cities, led by Redondo Beach, have filed a legal challenge to SB 9, a state law that permits single-family lots to be divided for the development of two to four houses.

    The Los Angeles Superior Court petition was brought Tuesday against Attorney General Rob Bonta by the cities of Redondo Beach, Torrance, Carson and Whittier, whose leaders want a court order finding the law in violation of the state constitution along with a prohibition on its enforcement.

    But according to the four cities’ petition, it is “undisputed that planning and zoning laws are matters of municipal affairs. The constitutional right of municipalities to zone single-family residential districts and the sanctioning principle upon which that right is founded has been well settled law for almost 100 years.”

    https://patch.com/california/shermanoaks/southland-cities-sue-block-controversial-housing-density-law

    Also, in reference to Keith’s first comment, watch how fast “housing demand” drops going forward. The housing market is now (finally) acknowledged to be in a bubble, which is a primary reason that the government is raising interest rates.

  4. Chris Griffith

    What does housing density universal basic income and forgiving student debt all have in common?

    Socialism 😁

     

    If the socialist party AKA Democrat party really wants to work on something work on the water issues how about we focus on building more dams that way when you put all these people in high density housing in urban centers and the socialist party takes away all her gas guzzling cars you can at least give them something to drink🥺

    This is just one person tumble opinion

     

  5. Ron Glick

    “A major cause of our housing crisis is the mismatch between the supply and demand for housing,” the legislature found. 

    At least the democratic dominated legislature understands basic economics.

  6. Ron Oertel

    Meanwhile, not a peep from the housing activists (or their politician friends) regarding the actual cause of the “housing crisis”:

    The planners pointed to a few factors that have created this situation – and, in a remarkable nod to economic reality, one of the slides showed that a big part of the problem is the demand side, not the supply side. The city, and the region, have seen a huge influx of people making very high salaries; in fact, while the price of housing rose 98 percent, the total income in the city rose about 90 percent.

    But as Fewer notes, those pay hikes didn’t trickle down to most local workers. Cops, teachers, and other city workers – the people who make the city function every day – saw about two percent pay hikes. Most of the new income came, she said, from “imported workers.”

    Sup. Jane Kim – again, moving away from modern market orthodoxy, promoted by the Mayor’s Office and City Planning Department, argued that housing should be “fully regulated” and not seen as a commodity that can generate great wealth. “If you want to make a ton of money, don’t go into housing,” she said.

    https://48hills.org/2017/11/housing-crisis-caused-much-growth/

    And locally – there’s the DiSC proposal, which will create demand for 1,269 housing units (beyond the 460 units planned onsite, on prime farmland).

    1. Craig Ross

      LOL. That’s just crap.  The demand side is that people need housing.  The reason that’s an issue is that there isn’t enough. You’re just obfuscating.

  7. Chris Griffith

    That’s just crap. The demand side is that people need housing. The reason that’s an issue is that there isn’t enough

    If you can’t afford a house then move somewhere where housing is more affordable. As people move away to different locations and the demand subsides the price of a house would come down and if it doesn’t oh well. Doubling down on housing density only does one thing. It emboldens the control freaks.

    Just one person’s humble opinion.

     

     

     

     

  8. Ron Oertel

    If I was a young person starting out today, I’d consider Raleigh, North Carolina (after watching this video, the other day):

    https://www.youtube.com/watch?v=llbsG_c3dOA

    Though I personally prefer the mountainous West.  (Which is a primary reason why I’m not all that fond of the Sacramento valley area – or anywhere in the central valley.  Well that, plus the heat.)

    In looking at topography maps, it appears that the entire California central valley is the one place in the West that’s essentially Kansas. Though at least the mountains are in sight, most of the time.

    I believe that the official slogan of the entire area is, “at least we’re kind of near some nice places”. Alternatively, “we may be in a floodplain, but that doesn’t mean that we don’t simultaneously experience droughts”.

  9. Chris Griffith

    I know sarcasm doesn’t transmit well in text, but this one was so obvious that only the most obtuse would have missed it thank you for not deleting the post 🙃

  10. Ron Oertel

    In all seriousness, this seems like a good deal to me.  Especially considering what it sold for, a few years ago (and with the amenities remaining). One of the news stories I just happened across. Previously owned by a geologist, who attended graduate school at UCLA.

    An early adopter/leader in solar energy, to boot. I like the look of the town, and even its surroundings are interesting at least.

    Buy yourself an entire town in the California desert, asking $2.7 million (but apparently willing to negotiate).  With a hotel, etc. – not far from Las Vegas:

    Millenials, pool your cash?

    https://www.8newsnow.com/news/local-news/tiny-mojave-desert-town-of-nipton-back-on-the-market/

  11. Ron Oertel

    O.K., last one of these that I’ll post for the day.  (I suspect that an algorithm “feeds” these articles to me).

    Something had really been missing from my life.  Why I ditched S.F. for Savannah, where the median house costs just $285,000.

    He was also surprised to discover how much the south had to offer businesswise. “Seeing companies relocating and starting here was really surprising. The population from all the universities has an appetite for innovation, technology and building the community up,” says Karimi. And, that’s made it easier for him to continue to work remotely.

    https://www.msn.com/en-us/money/realestate/something-had-really-been-missing-from-my-life-why-i-ditched-san-francisco-for-savannah-where-the-median-home-costs-just-285-000/ar-AAWhyRN?ocid=msedgdhp&pc=U531&cvid=67acc21c43d648938301567111504567

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