Limits on housing density approved by local voters can be overridden by lawmakers, a California appeals court ruled, upholding legislation that was intended to encourage construction of small apartment buildings.
The law, SB10 by state Sen. Scott Wiener, D-San Francisco, allows city and county governments to authorize new housing with up to 10 units in some urban areas, including those near transit, without conducting environmental studies. If an initiative passed by local voters has prohibited new housing in the area, the city council or county supervisors can still approve construction by a two-thirds vote. The law took effect in 2022 and is scheduled to expire at the end of 2028.
It was challenged by the AIDS Healthcare Foundation, which also supports more housing construction but opposed SB10 in the Legislature because it did not include requirements for low-cost housing. The foundation contended the legislation violated the voters’ right, under the California Constitution, to make law by initiative. The suit was joined by the city of Redondo Beach (Los Angeles County), whose voters had passed an initiative requiring their approval for more construction on existing housing parcels.
But the 2nd District Court of Appeal in Los Angeles said state lawmakers can overrule local voters on issues of statewide concern.
“The housing shortage is a matter of statewide concern,” and SB10 is “reasonably related to addressing that concern,” Justice Brian Hoffstadt said in Thursday’ 3-0 ruling, which upheld a judge’s decision.
Hoffstadt cited previous legislation aimed at addressing the shortage of affordable housing, starting with a 1965 law that required local governments to adopt long-term plans to promote adequate housing. Later laws required local governments to seek approval of their housing plans from the state Department of Housing and Community Development, and to approve proposed housing developments unless they found a “specific, adverse, and unavoidable impact on public health or safety.”
Many local residents “do not want to live near high-density housing, so they elect local officials hostile to such housing or lobby heavily against such housing,” Hoffstadt said. Statewide, he said, “the increase in housing prices at all levels reasonably supports the Legislature’s finding that there is a shortage of housing at all of those levels,” including affordable housing.
Plaintiffs in the suit also argued that allowing a city council to override local voters would lead to poorer decision-making because council members are more likely than the voters to be swayed by political interests. That might mean the state law was ill-advised, Hoffstadt said, but it doesn’t make it unconstitutional.
The AIDS Healthcare Foundation’s president, Michael Weinstein, said Monday that the court wrongly allowed state lawmakers to weaken voters’ rights.
“The drift toward the state overriding local governance is something that every community should be concerned about,” Weinstein said in a statement. “Unfortunately, the court supports allowing the state in its ‘infinite wisdom’ to let local legislative bodies override local ballot initiatives. It seems that neither the court nor the Legislature believes voters should have the right to self-determination.”
The foundation could seek review of the case in the state Supreme Court.
Wiener was not immediately available for comment. After the suit was filed, he said SB10 “empowers cities to be full partners” in solving “California’s profound housing shortage.”