By David M. Greenwald
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.”